EXHIBIT 4.6
AMENDED AND RESTATED
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
Dated as of December 20, 2002,
by and among
BLUE HILL II, INC.,
as Seller,
AMERISOURCEBERGEN DRUG CORPORATION
(as successor by merger to Bergen ▇▇▇▇▇▇▇▇ Drug Company),
as Servicer,
REDWOOD RECEIVABLES CORPORATION,
as a Conduit Purchaser,
THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Conduit Purchasers,
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Committed Purchaser and a Purchaser Agent
THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
as Committed Purchasers and Purchaser Agents,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
GE Capital Corporation/Blue Hill II, Inc.
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ARTICLE I. DEFINITIONS AND INTERPRETATION .................................................................... 2
Section 1.01. Definitions ............................................................................... 2
Section 1.02. Rules of Construction ..................................................................... 2
ARTICLE II. AMOUNTS AND TERMS OF PURCHASES ................................................................... 2
Section 2.01. Purchases ................................................................................. 2
Section 2.02. Optional Changes in Maximum Purchase Limit ................................................ 3
Section 2.03. Notices Relating to Purchases and Reductions in Aggregate Capital Investment .............. 4
Section 2.04. Conveyance of Transferred Receivables ..................................................... 5
Section 2.05. Facility Termination Date ................................................................. 7
Section 2.06. Daily Yield ............................................................................... 7
Section 2.07. Fees ...................................................................................... 7
Section 2.08. Time and Method of Payments ............................................................... 7
Section 2.09. Withholding Taxes ......................................................................... 8
Section 2.10. Capital Requirements; Additional Costs .................................................... 8
Section 2.11. Breakage Costs ............................................................................ 10
Section 2.12. Purchase Excess ........................................................................... 10
ARTICLE III. CONDITIONS PRECEDENT ............................................................................ 12
Section 3.01. Conditions Precedent to the Restatement Effective Date .................................... 12
Section 3.02. Conditions Precedent to All Purchases ..................................................... 14
ARTICLE IV. REPRESENTATIONS AND WARRANTIES ................................................................... 15
Section 4.01. Representations and Warranties of the Seller .............................................. 15
Section 4.02. Representations and Warranties of the Servicer ............................................ 19
ARTICLE V. GENERAL COVENANTS OF THE SELLER ................................................................... 20
Section 5.01. Affirmative Covenants of the Seller ....................................................... 20
Section 5.02. Reporting Requirements of the Seller ...................................................... 22
Section 5.03. Negative Covenants of the Seller .......................................................... 22
ARTICLE VI. COLLECTIONS AND DISBURSEMENTS .................................................................... 24
Section 6.01. Establishment of Accounts ................................................................. 24
Section 6.02. Funding of Agent's Account ................................................................ 28
Section 6.03. Daily Disbursements From the Agent's Account; Revolving Period ............................ 30
Section 6.04. Disbursements From the Reserve Account; Settlement Date Procedures; Revolving Period ...... 31
Section 6.05. Liquidation Settlement Procedures ......................................................... 32
Section 6.06. Investment of Funds in Accounts ........................................................... 33
Section 6.07. Termination Procedures .................................................................... 33
ARTICLE VII. SERVICER PROVISIONS ............................................................................. 34
Section 7.01. Appointment of the Servicer ............................................................... 34
Section 7.02. Duties and Responsibilities of the Servicer ............................................... 34
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Section 7.03. Collections on Receivables ........................................................... 34
Section 7.04. Authorization of the Servicer ........................................................ 35
Section 7.05. Servicing Fees ....................................................................... 36
Section 7.06. Representations and Warranties of the Servicer ....................................... 36
Section 7.07. Covenants of the Servicer ............................................................ 37
Section 7.08. Reporting Requirements of the Servicer ............................................... 38
ARTICLE VIII. GRANT OF SECURITY INTERESTS ............................................................... 38
Section 8.01. Seller's Grant of Security Interest .................................................. 38
Section 8.02. Seller's Certification ............................................................... 39
Section 8.03. Consent to Assignment ................................................................ 40
Section 8.04. Delivery of Collateral ............................................................... 40
Section 8.05. Seller Remains Liable ................................................................ 40
Section 8.06. Covenants of the Seller and the Servicer Regarding the Seller Collateral ............. 41
Section 8.07. License for Use of Software and Other Intellectual Property .......................... 43
ARTICLE IX. TERMINATION EVENTS .......................................................................... 43
Section 9.01. Termination Events ................................................................... 43
Section 9.02. Events of Servicer Termination ....................................................... 48
ARTICLE X. REMEDIES ..................................................................................... 49
Section 10.01. Actions Upon Termination Event ...................................................... 49
Section 10.02. Exercise of Remedies ................................................................ 50
Section 10.03. Power of Attorney ................................................................... 50
Section 10.04. Continuing Security Interest 51
ARTICLE XI. SUCCESSOR SERVICER PROVISIONS 51
Section 11.01. Servicer Not to Resign 51
Section 11.02. Appointment of the Successor Servicer ............................................... 51
Section 11.03. Duties of the Servicer .............................................................. 51
Section 11.04. Effect of Termination or Resignation ................................................ 52
ARTICLE XII. INDEMNIFICATION ............................................................................ 52
Section 12.01. Indemnities by the Seller ........................................................... 52
Section 12.02. Indemnities by the Servicer ......................................................... 54
Section 12.03. Limitation of Damages; Indemnified Persons .......................................... 55
ARTICLE XIII. AGENTS .................................................................................... 55
Section 13.01. Authorization and Action ............................................................ 55
Section 13.02. Reliance ............................................................................ 55
Section 13.03. Notice of Termination Events ........................................................ 57
Section 13.04. Nonreliance on Administrative Agent, Purchaser Agents, Other Purchasers ............. 57
Section 13.05. Indemnification ..................................................................... 57
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Section 13.06. Successor Agents ........................................................................ 58
Section 13.07. GE Capital and Affiliates ............................................................... 58
ARTICLE XIV. MISCELLANEOUS .................................................................................. 58
Section 14.01. Notices ................................................................................. 58
Section 14.02. Binding Effect; Assignability ........................................................... 59
Section 14.03. Termination; Survival of Seller Secured Obligations Upon Facility Termination Date ...... 62
Section 14.04. Costs, Expenses and Taxes ............................................................... 62
Section 14.05. Confidentiality ......................................................................... 64
Section 14.06. No Proceedings .......................................................................... 65
Section 14.07. Complete Agreement; Modification of Agreement ........................................... 65
Section 14.08. Amendments and Waivers .................................................................. 65
Section 14.09. No Waiver; Remedies ..................................................................... 66
Section 14.10. Governing Law; Consent To Jurisdiction; Waiver Of Jury Trial ............................ 67
Section 14.11. Counterparts ............................................................................ 68
Section 14.12. Severability ............................................................................ 68
Section 14.13. Section Titles .......................................................................... 68
Section 14.14. Limited Recourse ........................................................................ 68
Section 14.15. Further Assurances ...................................................................... 69
Section 14.16. Consent to Merger and Acknowledgement of Assignment ..................................... 70
Section 14.17. Effect on Predecessor Agreement; No Novation ............................................ 70
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EXHIBITS
2.02(a): Form of Commitment Reduction Notice
2.02(c): Form of Commitment Termination Notice
2.03(a): Form of Investment Base Certificate
2.03(b): Form of Capital Purchase Request
2.03(c): Form of Repayment Notice
2.04(a): Form of Purchase Assignment
2.04(d): Form of Purchaser Interest Reconveyance Agreement
3.01(a)(i): Form of Officer's Certificate as to Solvency (Seller/Servicer)
3.01(a)(ii)(A): Form of Officer's Closing Certificate (Seller)
3.01(a)(ii)(B): Form of Officer's Post-Closing Certificate (Seller)
3.01(a)(iii)(A): Form of Officer's Closing Certificate (Servicer)
3.01(a)(iii)(B): Form of Officer's Post-Closing Certificate (Servicer)
3.01(a)(iv): Form of Monthly Reporting
10.03: Form of Power of Attorney
14.02(b): Form of Assignment Agreement
14.08(b): Form of RPSA Supplement Agreement
A: Credit and Collection Policy
B-1: Form of Lockbox Account Agreement
B-2: Form of Deposit Account Agreement
B-3: Letter Amendment to Lockbox and Deposit Account Agreements
C: Intercreditor Agreement
D: Chattel Paper Agreement
ANNEXES
5.02(a): Reporting Requirements
5.02(b): Investment Reports
SCHEDULES
4.01(a): Significant Subsidiaries
4.01(i): Locations
4.01(q): Accounts
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AMENDED AND RESTATED
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AND SERVICING
AGREEMENT (the "Amended and Restated Agreement") dated as of December 20, 2002,
is entered into by and among BLUE HILL II, INC., a Delaware corporation (the
"Seller"), AMERISOURCEBERGEN DRUG CORPORATION (f/k/a AmeriSource Corporation), a
Delaware corporation, as successor by merger to Bergen ▇▇▇▇▇▇▇▇ Drug Company, a
California Corporation, as servicer hereunder (in such capacity, the
"Servicer"), REDWOOD RECEIVABLES CORPORATION, a Delaware corporation, as a
"Conduit Purchaser", the other financial institutions from time to time party
hereto as "Conduit Purchasers", "Committed Purchasers" and/or "Purchaser Agents"
(each as defined herein), GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as a "Committed Purchaser", as a "Purchaser Agent" for itself and
Redwood, and as administrative agent for itself, Redwood and the other Conduit
Purchasers, Committed Purchasers and Purchaser Agents hereunder (in such
capacity, the "Administrative Agent").
RECITALS
A. The Seller, the Servicer, Redwood as conduit purchaser, GE
Capital as committed purchaser and the Administrative Agent have entered into
that certain Receivables Purchase and Servicing Agreement dated as of December
20, 2000, as amended by that certain First Amendment dated as of August 29,
2001, as amended by that certain Second Amendment dated as of December 21, 2001,
as amended by that certain Third Amendment dated as of October 1, 2002, and as
amended by that certain Fourth Amendment dated as of December 2, 2002
(collectively, the "Predecessor Agreement").
B. The Seller desires to amend and restate the Predecessor
Agreement in its entirety to (i) add additional parties as "Purchasers" so that
such parties may make Purchases of Purchaser Interests, (ii) increase the
Maximum Purchase Limit available to the Seller, (iii) add other additional
parties as "Purchaser Agents" to act as agents to the "Purchasers" in order to
facilitate the Purchases and (iv) provide for the ability of the Purchasers to
assign their interests from time to time (the Predecessor Agreement, as so
amended and restated, and this Amended and Restated Agreement, as further
amended, restated, supplemented or otherwise modified from time to time,
collectively, this "Agreement").
C. The Seller and the Servicer have requested that the
Predecessor Agreement be amended and restated to permit the addition of certain
parties as "Purchasers" and the Seller, the Servicer, the Conduit Purchaser who
is Redwood, the Committed Purchaser who is GECC and the Administrative Agent
have mutually requested that Annex X be amended and restated to reflect the
foregoing.
D. The Seller is a special purpose corporation owned by the
Originator.
E. The Seller has been formed for the purpose of purchasing, or
otherwise acquiring by capital contribution, certain designated trade
receivables of the Originator.
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F. The Seller intends to sell, and subject to the terms and
conditions hereof, each Conduit Purchaser and Committed Purchaser intends to
purchase, undivided percentage interests in such trade receivables, from time to
time, as described herein.
G. The Administrative Agent has been requested and is willing
to act as administrative agent on behalf of each Conduit Purchaser, Committed
Purchaser and Purchaser Agent, in connection with the making and financing of
such purchases.
H. In order to effectuate the purposes of this Agreement, each
Conduit Purchaser, Committed Purchaser and Purchaser Agent desires to appoint
the Originator to service, administer and collect the receivables acquired by
the Purchasers pursuant to this Agreement and the Originator is willing to act
in such capacity as the Servicer hereunder on the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in Annex X.
Section 1.02. Rules of Construction. For purposes of this
Agreement, the rules of construction set forth in Annex X shall govern. All
Appendices hereto, or expressly identified to this Agreement, are incorporated
herein by reference and, taken together with this Agreement, shall constitute
but a single agreement.
ARTICLE II.
AMOUNTS AND TERMS OF PURCHASES
Section 2.01. Purchases.
(a) From and after the Closing Date and until the Facility
Termination Date and subject to the terms and conditions hereof, the Seller from
time to time may request that the Conduit Purchasers, or, only if a Conduit
Purchaser denies such request or is unable to fund such request (and provides
notice of such denial or inability to fund to the Seller, the Administrative
Agent, and such Conduit Purchaser's Purchaser Agent), ratably request that such
Conduit Purchaser's related Committed Purchasers, purchase Purchaser Interests
(each such purchase hereunder, a "Purchase") and the Seller agrees to sell such
Purchaser Interests to the Purchasers. Subject to those funds that will be
deemed to be Reinvestment Purchases as described in this Section 2.01, the
Conduit Purchasers who are not also Committed Purchasers are not obligated to
make any Purchase, except that Redwood, in its capacity as a Conduit Purchaser,
shall not
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exercise its discretion to deny a request by the Seller to make a Purchase
unless a Redwood Termination Date has occurred. Each Conduit Purchaser severally
agrees, on the terms and conditions hereof, that if it determines, in its
discretion, to make a Purchase requested of it, such Conduit Purchaser shall
make available, in accordance with Section 2.04(b) hereof, an amount equal to
such Conduit Purchaser's Purchaser Group's Pro Rata Share of such Purchase. Each
of the Committed Purchasers severally agrees, on the terms and conditions
hereof, that if a Purchase is requested of it and the Committed Purchaser Expiry
Date for such Committed Purchaser has not occurred, such Committed Purchaser
shall make available in accordance with Section 2.04(b) hereof, an amount equal
to such Committed Purchaser's Purchaser Group's Pro Rata Share of such Purchase
(and in the case of each Committed Purchaser within a particular Purchaser
Group, its Commitment Percentage of its Purchaser Group's Pro Rata Share of such
Purchase). Notwithstanding the foregoing, under no circumstances shall a
Purchaser make any Purchase if, after giving effect thereto, a Purchase Excess
would exist.
(b) Each Committed Purchaser's obligation hereunder shall be
several, such that the failure of any Committed Purchaser to make a payment in
connection with any Purchase hereunder shall not relieve any other Committed
Purchaser of its obligation hereunder to make payment for such Purchase.
(c) Each purchase of undivided percentage ownership interests in
the Transferred Receivables by the Purchasers hereunder shall consist of either
(i) a purchase made by the Applicable Purchasers with new funds provided by such
Purchasers (each, a "Capital Purchase") or (ii) a purchase made by the
Applicable Purchasers with funds consisting of Collections allocated to the
Purchaser Interests pursuant to the terms of this Agreement which does not
increase the Aggregate Capital Investment or any Capital Investment (each, a
"Reinvestment Purchase"). On each Business Day following the Closing Date until
the Facility Termination Date, but subject to the conditions set forth in
Section 3.02 hereof, each Purchaser holding a Purchaser Interest at such time
shall be automatically deemed to have made a Reinvestment Purchase with the
excess of (x) the proceeds of Collections in which it has a Purchaser Interest
over (y) the amount to be paid pursuant to Sections 6.02(b)(i), 6.03(f), 6.03(g)
and 8.06(d), except that if the Administrative Agent has taken dominion and
control over the Lockbox Accounts pursuant to Section 6.01(a)(i), such
Reinvestment Purchase shall be made in the amount of funds to be distributed to
the Seller pursuant to Section 6.04(d).
Section 2.02. Optional Changes in Maximum Purchase Limit.
(a) So long as no Incipient Termination Event or Termination
Event shall have occurred and be continuing, the Seller may, not more than four
times during each fiscal year, reduce the Maximum Purchase Limit permanently;
provided, that (i) the Seller shall give ten Business Days' prior written notice
of a reduction, each to the Administrative Agent and to each Purchaser Agent and
substantially in the form of Exhibit 2.02(a) (each such notice, a "Commitment
Reduction Notice"); (ii) any partial reduction of the Maximum Purchase Limit
shall be in a minimum amount of $25,000,000 or an integral multiple thereof, and
(iii) no such reduction shall reduce the Maximum Purchase Limit below the
Aggregate Capital Investment at the time of such reduction. Every reduction as
provided for in this Section must be accompanied by payment to the Purchasers,
ratably, in accordance with their respective Capital Investments, in the amount
equal to the excess of the Aggregate Capital Investment over the Maximum
Purchase
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Limit. Any reduction provided for in this Section 2.02(a) shall be applied
ratably to reduce the Group Commitment of each Purchaser Group. If, after giving
effect to the foregoing reduction and payment, any Group Investment is in excess
of such Purchaser Group's Group Commitment, the Seller shall pay the Purchasers
in such Purchaser Group, ratably, in accordance with their respective Capital
Investments, the amount of such excess.
(b) [Intentionally Omitted]
(c) The Seller may at any time on at least 30 days' prior written
notice by the Seller to the Administrative Agent and to each Purchaser Agent
irrevocably terminate the Maximum Purchase Limit; provided, that (i) such notice
of termination shall be substantially in the form of Exhibit 2.02(c) (the
"Commitment Termination Notice"), and (ii) the Seller shall reduce the Aggregate
Capital Investment to zero and make all payments required by Section 2.03(c) at
the time and in the manner specified therein. Upon such termination, the
Seller's right to request that any Purchaser make Purchases hereunder shall
simultaneously terminate and the Facility Termination Date shall automatically
occur.
(d) Each written notice required to be delivered pursuant to this
Section 2.02 shall be irrevocable and shall be effective (i) on the day of
receipt if received by the Administrative Agent and the Purchasers not later
than 5:00 p.m. (New York time) on any Business Day, and (ii) on the immediately
succeeding Business Day if received by the Administrative Agent and the
Purchasers after such time on such Business Day or if any such notice is
received on a day other than a Business Day (regardless of the time of day such
notice is received). Each such notice of termination or reduction shall specify,
respectively, the amount of, or the amount of the proposed reduction in, the
Maximum Purchase Limit.
Section 2.03. Notices Relating to Purchases and Reductions in
Aggregate Capital Investment.
(a) Except as otherwise provided in Annex 5.02(b), not later than
1:00 p.m. (New York time) on the third Business Day of each week, the Seller
shall deliver to the Purchasers and the Administrative Agent an Officer's
Certificate substantially in the form of Exhibit 2.03(a) (each, an "Investment
Base Certificate").
(b) Each Purchase resulting in an increase in Aggregate Capital
Investment shall be made upon the provision of notice by the Seller to the
Administrative Agent and to each Purchaser Agent in the manner provided herein.
Any such notice must be given in writing so that it is received no later than
12:00 Noon (New York time) on the Business Day immediately preceding the
proposed Purchase Date set forth therein. Each such notice (a "Capital Purchase
Request") shall (i) be substantially in the form of Exhibit 2.03(b), (ii) be
irrevocable and (iii) specify the amount of the requested increase in Aggregate
Capital Investment and the proposed Purchase Date (which shall be a Business
Day).
(c) The Seller may at any time reduce the Aggregate Capital
Investment; provided, that (i) the Seller shall give prior written notice of any
such reduction to the Administrative Agent (with copies to each Purchaser Agent)
substantially in the form of Exhibit 2.03(c) (each such notice, a "Repayment
Notice"), (ii) each such notice shall be irrevocable, (iii)
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each such notice shall specify the amount of the requested reduction in the
Aggregate Capital Investment and the proposed date of such reduction (which
shall be a Business Day) and (iv) any such reduction must be accompanied by
payment of (A) all Daily Yield accrued and unpaid on each respective Capital
Investment being reduced through but excluding the date of such reduction and
(B) the costs, if any, required by Section 2.11. Any such notice of reduction
must be received by the Administrative Agent and each Purchaser Agent no later
than 12:00 Noon (New York time) on the Business Day immediately preceding the
date of the proposed reduction in Aggregate Capital Investment; provided, that
if such proposed reduction would result in the reduction of $100,000,000 or more
of the Capital Investment of the Related Purchasers in any Purchaser Group for
which The Bank of Nova Scotia is the Purchaser Agent, notice of such reduction
must be received by the Administrative Agent and each Purchaser Agent no later
than 12:00 Noon (New York time) on the second Business Day immediately preceding
the date of the proposed reduction in Aggregate Capital Investment.
Section 2.04. Conveyance of Transferred Receivables.
(a) Purchase Assignment. On or prior to the Closing Date, the
Seller shall complete, execute and deliver to the Administrative Agent for the
benefit of the Purchasers (ratably, in accordance with their respective Capital
Investments) an assignment substantially in the form of Exhibit 2.04(a) (the
"Purchase Assignment") in order to evidence the Purchases.
(b) Funding of Capital Purchases; Increases in Aggregate Capital
Investment.
(i) Payment of Purchase Price: No Cash Management Event.
Following receipt of any Capital Purchase Request, and subject to satisfaction
of the conditions set forth in Section 3.02, each Applicable Purchaser (or the
related Purchaser Agent on its behalf) shall make available, ratably, in
accordance with such Purchaser's Purchaser Group's Pro Rata Share (and, in the
case of each Committed Purchaser within a particular Purchaser Group, in
accordance with its Commitment Percentage of its Purchaser Group's Pro Rata
Share of such Purchase) to or on behalf of the Seller on the Purchase Date
specified therein, the lesser of the requested increase in Aggregate Capital
Investment specified in such Capital Purchase Request and Aggregate Capital
Investment Available by depositing such amount in the Seller Account; provided
that if the Administrative Agent has taken exclusive dominion and control over
the Lockbox Accounts pursuant to Section 6.01(a)(i), each Applicable Purchaser
(or the related Purchaser Agent on its behalf) shall deposit such amount in the
Agent's Account in accordance with Section 6.03(b).
(ii) Payment of Purchase Price: Cash Management Event. After
the Cash Management Date and as long as no Termination Event has occurred and is
continuing, the Applicable Purchasers shall, or shall cause the Administrative
Agent to, make available, ratably, in accordance with each such Purchaser's
Purchaser Group's Pro Rata Share (and, in the case of each Committed Purchaser
within a particular Purchaser Group, in accordance with its Commitment
Percentage of its Purchaser Group's Pro Rata Share of such Purchase), to or on
behalf of the Seller on each Business Day during the Revolving Period, in same
day funds, all amounts on deposit in the Agent's Account that
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are to be disbursed to or on behalf of the Seller as payment for the
Purchaser Interests pursuant to Section 6.04(d).
(c) Vesting of Ownership.
(i) Effective on and as of each Purchase Date, the
Applicable Purchasers shall own (ratably, in accordance with their
respective Capital Investments) the Purchaser Interests sold by the
Seller hereunder on such Purchase Date. The Seller shall not take any
action inconsistent with such ownership and shall not claim any
ownership interests in such Purchaser Interests.
(ii) The Seller shall indicate in its Records that
interests in the Transferred Receivables have been sold hereunder and
that ownership of such interests is vested in the Administrative Agent
on behalf of the Purchasers to the extent of the Purchaser Interests.
In addition, the Seller shall respond to any inquiries with respect to
the ownership of any Transferred Receivable by stating that interests
therein have been sold hereunder and that ownership of such interests
is vested in the Purchasers to the extent of the Purchaser Interests.
(d) Repurchases of Transferred Receivables. If (i) the
Originator is required to repurchase Transferred Receivables from the Seller
pursuant to Section 3.2 of the Sale and Contribution Agreement, or (ii) in
connection with a Distribution Center Consolidation of a BH2 Designated
Distribution Center into an ARFC Designated Distribution Center, the Originator
repurchases Transferred Receivables originated at such BH2 Designated
Distribution Center, then in each case, the Applicable Purchaser shall sell and
reconvey its Purchaser Interests in such Transferred Receivables to the Seller
either (x) through the transfer of such Purchaser Interests in exchange for
Purchaser Interests in other Transferred Receivables with an Outstanding Balance
equal to the Outstanding Balance of the Transferred Receivables being
repurchased or (y) for cash in an amount equal to the Outstanding Balance of the
Transferred Receivables being repurchased. In connection with any reconveyance
of Purchaser Interests by the Purchasers pursuant to a Distribution Center
Consolidation described in clause (ii) above, the Seller, the Purchasers and
Administrative Agent shall execute and deliver a Purchaser Interest Reconveyance
Agreement with respect to the Purchaser Interests to be reconveyed.
(e) Optional Retransfers.
(i) At its option and at any time, the Seller shall have
the right to repurchase all, but not less than all, of the then
outstanding Purchaser Interests in the Transferred Receivables. The
Seller shall be entitled to effectuate such reconveyance upon 30 days'
prior written notice by the Seller to the Administrative Agent and to
each Purchaser Agent; provided, that on the effective date of such
repurchase (as specified in the notice to the Administrative Agent and
to each Purchaser Agent), the Seller shall reduce the Aggregate Capital
Investment to zero and make all payments required to by Section 2.03(c)
on such date. Upon such repurchase, the Seller's right to request that
any Purchaser make Purchases hereunder shall simultaneously terminate
and the Facility Termination Date shall automatically occur.
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(ii) On any day, with respect to any Purchaser Interest
which has been repurchased pursuant to Section 2.04(e)(i), the
Administrative Agent and each Purchaser holding Purchaser Interests
immediately prior to such repurchase shall, on such day and at the
expense of the Seller, take all actions required under Section 6.08(b)
to release their interests in the Transferred Receivables, the Related
Security, all Collections with respect thereto and all Proceeds of the
foregoing and otherwise to effect such repurchase.
Section 2.05. Facility Termination Date; Committed Purchaser
Expiry Date. Notwithstanding anything to the contrary set forth herein, (a) no
Purchaser shall have any obligation to purchase any additional Purchaser
Interests from and after the Facility Termination Date and (b) from and after
the Committed Purchaser Expiry Date for any Committed Purchaser, neither such
Committed Purchaser nor any Related Purchasers shall have any obligation to
purchase any Purchaser Interests.
Section 2.06. Daily Yield.
(a) The Seller shall pay Daily Yield for each day on which any
Capital Investment is outstanding, in the manner and at the times specified in
Sections 6.04, 6.05 and 6.06.
(b) Notwithstanding the foregoing, the Seller shall pay interest
at the applicable Daily Yield Rate on unpaid Daily Yield and on any other amount
payable by the Seller hereunder (to the extent permitted by law) that shall not
be paid in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof to (but excluding)
the date the same is indefeasibly paid in full.
Section 2.07. Fees.
(a) On each Settlement Date, the Seller shall pay to the Servicer
or to the Successor Servicer, as applicable, the Servicing Fee or the Successor
Servicing Fees and Expenses, respectively, in each case to the extent of
available funds therefor as provided in Section 6.05.
(b) On or prior to the Restatement Effective Date, the Seller
shall pay to the Administrative Agent, for the account of itself, the Purchaser
Agents and the Purchasers, the fees, including the Purchaser Group Commitment
Fees, set forth in each respective Purchaser Group Fee Letter that are payable
on the Restatement Effective Date.
Section 2.08. Time and Method of Payments.
(a) Except as otherwise provided in Sections 6.02, 6.03, 6.04,
6.05 and 6.06, all payments in reduction of Aggregate Capital Investment and all
payments of yield, fees and other amounts payable by the Seller hereunder shall
be made in Dollars, in immediately available funds, to the Administrative Agent
(for its account or the account of the Applicable Purchasers (ratably, in
accordance with their respective Capital Investments), Affected Parties or
Indemnified Persons) not later than 12:00 Noon (New York time) on the due date
therefor. Any such payment made on such date but after such time shall be deemed
to have been made on, and Daily Yield on each respective Capital Investment
shall continue to accrue and be payable
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thereon until, the next succeeding Business Day. If any such payment becomes due
on a day other than a Business Day, the maturity thereof will be extended to the
next succeeding Business Day and Daily Yield thereon shall be payable during
such extension.
(b) Any and all payments by the Seller hereunder shall be made in
accordance with this Section 2.08 without setoff or counterclaim and free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, excluding those taxes specified in
clauses (a), (b) and (d) of the definition of "Excluded Taxes" (such
non-excluded taxes, levies, imposts, deductions, charges and withholdings being
"Indemnified Taxes"). If the Seller shall be required by law to deduct any
Indemnified Taxes from or in respect of any sum payable hereunder, (i) the sum
payable shall be increased as much as shall be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.08) the Affected Party entitled to receive any such
payment receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Seller shall make such deductions, and (iii) the
Seller shall pay the full amount deducted to the relevant taxing or other
authority in accordance with applicable law. Within 30 days after the date of
any payment of Indemnified Taxes, the Seller shall furnish to the Administrative
Agent the original or a certified copy of a receipt evidencing payment thereof.
The Seller shall indemnify any Affected Party from and against, and, within ten
days of demand therefor, pay any Affected Party for, the full amount of
Indemnified Taxes (together with any taxes imposed by any jurisdiction on
amounts payable under this Section 2.08) paid by such Affected Party and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or legally
asserted.
Section 2.09. Withholding Taxes. Before the first date on which
any amount is payable hereunder for the account of any Purchaser not
incorporated under the laws of the United States of America, such Purchaser
shall deliver to each of the Seller and the Administrative Agent two (2) duly
completed copies of United States Internal Revenue Service Form W-8BEN or 8-WECI
(or successor applicable form) certifying that such Purchaser is entitled to
receive payments hereunder without deduction or withholding of any United States
federal income taxes. Each such Purchaser shall replace or update such forms
when necessary to maintain any applicable exemption and as requested by the
Administrative Agent or Seller.
Section 2.10. Capital Requirements; Additional Costs.
(a) If the adoption after the date hereof of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by any Affected Party with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law) from any central bank or other Governmental Authority
increases or would have the effect of increasing the amount of capital, reserves
or other funds required to be maintained by such Affected Party against
commitments made by it under this Agreement, any other Related Document or any
Program Document and thereby reducing the rate of return on such Affected
Party's capital as a consequence of its commitments hereunder or thereunder,
then the Seller shall from time to time upon demand (and submission of the
computation certificate discussed below) by the Administrative Agent pay to the
Administrative Agent on behalf of such
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Affected Party, or if so required pursuant to Section 6.02, to such Affected
Party directly, documented additional amounts sufficient to compensate such
Affected Party for the Seller's Share of such reduction together with interest
thereon from the date of any such demand until payment in full at the applicable
Daily Yield Rate; provided, however, that the Seller shall be obligated to pay
only such compensation which is incurred after the date sixty (60) days prior to
the date of such demand; provided, further, however, that such 60-day limitation
shall not apply to any such compensation that is applicable retroactively to
periods prior to the effective date of the applicable event so long as the
Administrative Agent notifies the Seller of such event within 60 days of a
responsible officer of the Administrative Agent receiving actual knowledge
thereof. A certificate as to the amount of that reduction and showing the basis
of the computation thereof and which is calculated the same as for comparable
claims with respect to similarly situated sellers or borrowers of the Applicable
Purchaser submitted by the Administrative Agent to the Seller shall be final,
binding and conclusive on the parties hereto (absent manifest error) for all
purposes.
(b) If, due to any Regulatory Change, there shall be any increase
in the cost to any Affected Party of agreeing to make or making, funding or
maintaining any commitment hereunder, under any other Related Document or under
any Program Document, including with respect to any Purchases, Capital
Investment, LOC Draws or Liquidity Loans, or any reduction in any amount
receivable by such Affected Party hereunder or thereunder, including with
respect to any Purchases, Capital Investment, LOC Draws or Liquidity Loans (any
such increase in cost or reduction in amounts receivable are hereinafter
referred to as "Additional Costs"), then the Seller shall, from time to time
upon demand (and submission of the computation certificate described below) by
the Administrative Agent or any Purchaser Agent, pay to the Administrative Agent
on behalf of such Affected Party, or if so required pursuant to Section 6.02 to
the Affected Party directly, additional amounts sufficient to compensate such
Affected Party for the Seller's Share of such Additional Costs together with
interest thereon from the date demanded until payment in full thereof at the
applicable Daily Yield Rate; provided, however, that the Seller shall be
obligated to pay only such compensation which is incurred after the date sixty
(60) days prior to the date of such demand; provided, further, however, that
such 60-day limitation shall not apply to any such compensation that is
applicable retroactively to periods prior to the effective date of the
applicable event so long as the Administrative Agent or any Purchaser Agent
notifies the Seller of such event within 60 days of a responsible officer of the
Administrative Agent or any Purchaser Agent receiving actual knowledge thereof.
Such Affected Party agrees that, as promptly as practicable after it becomes
aware of any circumstance referred to above that would result in any such
Additional Costs, it shall, to the extent not inconsistent with its internal
policies of general application, use reasonable commercial efforts to minimize
costs and expenses incurred by it and payable to it by the Seller pursuant to
this Section 2.10(b).
(c) With respect to any compensation payable under Section
2.10(a) or any Additional Costs payable under Section 2.10(b), the Purchaser
shall not allocate to Seller a proportionately greater amount of such
compensation than it allocates to each of its other commitments to make
purchases or to lend with respect to which it is entitled to demand comparable
compensation, and will not include amounts already factored into the rates of
interest or fees already provided for herein.
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(d) Determinations by any Affected Party for purposes of this
Section 2.10 of the effect of any Regulatory Change on its costs of making,
funding or maintaining any commitments hereunder, under any other Related
Document or under any Program Document or on amounts receivable by it hereunder
or thereunder or of the additional amounts required to compensate such Affected
Party in respect of any Additional Costs shall be set forth in a written notice
to the Seller in reasonable detail and which is calculated the same as for
comparable claims with respect to similarly situated sellers or borrowers of the
Affected Party and shall be final, binding and conclusive on the Seller (absent
manifest error) for all purposes.
Section 2.11. Breakage Costs. The Seller shall pay to the
Administrative Agent for the account of the Applicable Purchaser, or if so
required pursuant to Section 6.02 to the Applicable Purchaser, upon request of
such Purchaser, such amount or amounts as shall compensate such Purchaser for
any loss, cost or expense incurred by such Purchaser (as determined by such
Purchaser) as a result of any reduction by the Seller in Aggregate Capital
Investment (and accompanying loss of Daily Yield thereon) other than on the
maturity date of the Commercial Paper (or other financing source) funding such
Aggregate Capital Investment, which compensation shall include an amount equal
to any loss or expense incurred by such Purchaser during the period from the
date of such reduction to (but excluding) the maturity date of such Commercial
Paper (or other financing source) if the rate of interest obtainable by such
Purchaser upon the redeployment of funds in an amount equal to such reduction is
less than the interest rate applicable to such Commercial Paper (or other
financing source), (any such loss, cost or expense, "Breakage Costs"). The
determination by such Purchaser of the amount of any such loss or expense shall
be set forth in a written notice to the Seller at the time of demand or charge
in reasonable detail and shall be calculated in a manner which is consistent
with the manner in which it makes calculations for comparable claims with
respect to similarly situated sellers or borrowers and shall be final, binding
and conclusive on the Seller (absent manifest error) for all purposes; provided,
that the Purchaser shall not allocate to Seller a proportionately greater amount
of such compensation than it allocates to each of its other commitments to make
purchases or to lend with respect to which it is entitled to demand comparable
compensation, and will not include amounts already factored into the rates of
interest or fees already provided for herein.
Section 2.12. Purchase Excess. On each Business Day during the
Revolving Period and after completion of the disbursements specified in Section
6.04, the Administrative Agent shall notify the Seller and the Servicer of any
Purchase Excess on such day, and the Seller shall (a) prior to the Cash
Management Date, pay such Purchase Excess in accordance with Section 6.02(a)(i)
and (b) on and after the Cash Management Date, deposit the amount of such
Purchase Excess in the Agent's Account by 12:00 Noon (New York time) on the
immediately succeeding Business Day.
Section 2.13. Extension of the Committed Purchaser Expiry Date.
(a) Extension Request. The Seller, not more than forty-five (45)
days before the date set forth in clause (b) of the definition of Committed
Purchaser Expiry Date, may request that the relevant Committed Purchaser (the
"Renewable Committed Purchaser") extend the Renewable Committed Purchaser's
Committed Purchaser Expiry Date by giving the Renewable Committed Purchaser's
Purchaser Agent and the Administrative Agent notice of such
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request. The related Purchaser Agent shall promptly notify the Renewable
Committed Purchaser of the receipt of such request, and the Renewable Committed
Purchaser shall, not later than fifteen (15) days before the Renewable Committed
Purchaser's Committed Purchaser Expiry Date, notify its Purchaser Agent and the
Administrative Agent whether or not it consents to such extension; provided,
that if the Renewable Committed Purchaser fails to give such notice it shall be
deemed not to have consented to such extension. Consent to any extension
requested by the Seller may be given or withheld in the sole and absolute
discretion of the Renewable Committed Purchaser. Upon receipt of consent by the
Renewable Committed Purchaser to an extension, the relevant Purchaser Agent
promptly will notify the Seller thereof, and effective as of the Renewable
Committed Purchaser's Committed Purchaser Expiry Date, the Renewable Committed
Purchaser's Committed Purchaser Expiry Date then in effect shall be extended to
the date that is 364 days (or such other period as agreed by the Renewable
Committed Purchaser) after the Renewable Committed Purchaser's Committed
Purchaser Expiry Date then in effect, or if such day is not a Business Day, the
immediately preceding Business Day. The Administrative Agent will promptly give
the Seller notice of any failure of any Renewable Committed Purchaser to consent
to any requested extension of such Renewable Committed Purchaser's Committed
Purchaser Expiry Date (each Renewable Committed Purchaser which has declined or
has been deemed to have declined to renew its Commitment hereunder, a
"Non-Renewing Committed Purchaser").
(b) Reduction of Maximum Purchase Limit; Payment Mechanics. To
the extent that the Availability at the time of such declaration equals or
exceeds the outstanding Capital Investment of the Non-Renewing Committed
Purchaser, on the Committed Purchaser Expiry Date of such Non-Renewing Committed
Purchaser, the Maximum Purchase Limit, to the extent the Non-Renewing Committed
Purchaser's Commitment is not assigned as provided in Section 2.13(c), shall be
reduced in an amount equal to the Commitment of such Non-Renewing Committed
Purchaser immediately prior to the termination of such Commitment. On the
Business Day immediately preceding such Non-Renewing Committed Purchaser's
Committed Purchaser Expiry Date, the Seller shall deliver to the Administrative
Agent and to each Purchaser Agent who represents a remaining Committed
Purchaser, a Capital Purchase Request pursuant to Section 2.03(b) requesting a
Purchase in an amount equal to the Non-Renewing Committed Purchaser's
outstanding Capital Investment and shall remit the proceeds of such Purchase to
the Non-Renewing Committed Purchaser (or to such Non-Renewing Committed
Purchaser's Purchaser Agent for the account of such Non-Renewing Committed
Purchaser) as payment in full for such Non-Renewing Committed Purchaser's
outstanding Capital Investment; provided, that in no circumstances shall the
Commitment of the remaining Committed Purchaser be increased.
(c) Assignment by Non-Renewing Committed Purchaser.
Notwithstanding the preceding Section 2.13(b), so long as no Termination Event
has occurred and is continuing, the Seller (with the written consent of the
Administrative Agent and each Purchaser other than the Non-Renewing Committed
Purchaser), the Administrative Agent or the Non-Renewing Committed Purchaser may
arrange for one or more financial institutions that meet the requirements set
forth in Section 14.02(b) to assume all or part of the Commitment of a
Non-Renewing Committed Purchaser, so long as each such assignment satisfies the
requirements of Section 14.02(b) hereof; provided, that the assumption of such
Commitments for all Non-Renewing Committed Purchasers shall be on a pro rata
basis or on such other allocations as the
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Committed Purchasers shall agree. If a financial institution is willing to
assume all or a part of the Non-Renewing Committed Purchaser's Commitment, then
such financial institution, the Non-Renewing Committed Purchaser, the Seller and
the Administrative Agent will promptly evidence such assumption and assignment
pursuant to Section 14.02(b).
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to the Restatement Effective
Date. Neither the Conduit Purchasers nor the Committed Purchasers shall be
obligated to purchase Purchaser Interests hereunder on the occasion of the
initial Purchase following the Restatement Effective Date, nor shall any
Purchaser, any Purchaser Agent or the Administrative Agent be obligated to take,
fulfill or perform any other action hereunder, until the following conditions
have been satisfied, in the sole discretion of, or waived in writing by, the
Purchasers and the Administrative Agent:
(a) Agreement; Other Related Documents. The Administrative Agent
and the Purchasers shall have received each of the following documents,
instruments, agreements and legal opinions, in each case in form and substance
satisfactory to the Administrative Agent and the Purchasers:
(i) counterparts hereof executed by each of the parties to
this Agreement;
(ii) an executed Third Amendment to the Sale and
Contribution Agreement, dated as of the date hereof, between the Seller
and the Originator, acknowledged and agreed to by the Administrative
Agent (the "Third Amendment to the Sale and Contribution Agreement")
together with evidence of the effectiveness of the Third Amendment to
the Sale and Contribution Agreement;
(iii) copies of each of the documents required to be
delivered under Section 4(a) of the Third Amendment to the Sale and
Contribution Agreement and evidence satisfactory to the Administrative
Agent that the conditions precedent thereto have been satisfied;
(iv) an executed Amended and Restated Redwood Fee Letter,
dated as of the date hereof, between the Seller and GE Capital in its
capacities as Administrative Agent, a Purchaser Agent and a Committed
Purchaser.
(v) an executed RPSA Supplement Agreement, dated as of the
date hereof, between the Seller, Liberty Street Funding Corp. as a
Conduit Purchaser, The Bank of Nova Scotia as a Committed Purchaser,
and The Bank of Nova Scotia as Purchaser Agent for the aforementioned
Conduit Purchaser and Committed Purchaser;
(vi) an executed Purchaser Group Fee Letter in respect of
The Bank of Nova Scotia's Purchaser Group, among the Seller, The Bank
of Nova Scotia and Liberty Street Funding Corp.;
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(vii) a certificate of an officer of the Seller certifying,
among other things, that the representations and warranties contained
in the Related Documents are correct as of the Restatement Effective
Date;
(viii) a certificate of an officer of the Servicer
certifying, among other things, that the representations and warranties
contained in the Related Documents are correct as of the Restatement
Effective Date;
(ix) a certificate of the Secretary or Assistant Secretary
of the Seller certifying that no changes have been made to the
certificate of incorporation of the Seller and bylaws of the Seller,
and certifying and attaching resolutions authorizing this Agreement,
and an incumbency certificate;
(x) a certificate of the Secretary or Assistant Secretary
of the Servicer certifying that no changes have been made to the
certificate of incorporation of the Servicer and the bylaws of the
Servicer, and certifying and attaching resolutions authorizing this
Agreement and an incumbency certificate;/1/
(xi) tax and good standing certificates of the Seller in
the states of California, and Delaware (to the extent not provided
pursuant to clause (iii) above);
(xii) tax and good standing certificates of the Servicer in
the state of California, Pennsylvania and Delaware (to the extent not
provided pursuant to clause (iii) above);
(xiii) a legal opinion as to true sale and substantive
consolidation matters delivered by Dechert after giving effect to this
Agreement;
(xiv) a legal opinion as to security interests,
enforceability, non-contravention and corporate matters delivered by
Dechert, and in addition, a legal opinion delivered by the in-house
counsel of the Servicer and the Seller, both, after giving effect to
this Agreement; and
(xv) such additional documentation as the Administrative
Agent may reasonably request.
(b) Governmental Approvals. The Purchasers and the Administrative
Agent shall have received (i) satisfactory evidence that the Seller and the
Servicer have obtained all required consents and approvals of all Persons,
including all requisite Governmental Authorities, to the execution, delivery and
performance of this Agreement and the other Related Documents and the
consummation of the transactions contemplated hereby or thereby or (ii) an
Officer's Certificate from each of the Seller and the Servicer in form of
Exhibits 3.01(a)(ii)(A) and 3.01(a)(iii)(A) respectively.
(c) Compliance with Laws. The Seller and the Servicer shall be in
compliance in all respects with all applicable foreign, federal, state and local
laws and regulations, including those specifically referenced in Section
5.01(a), except where such failure to comply does not have a Material Adverse
Effect.
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(d) Payment of Fees. The Seller shall have paid all fees required
to be paid by it on the Restatement Effective Date, including all fees required
hereunder and under the Purchaser Group Fee Letters, and shall have reimbursed
each Purchaser for all fees, costs and expenses of closing the transactions
contemplated hereunder and under the other Related Documents, including each
Purchaser's legal, rating agency and audit expenses, and other document
preparation costs to the extent required under Section 14.04 hereof.
(e) Representations and Warranties. Each representation and
warranty by the Seller, Servicer and Originator contained herein and in each
other Related Document shall be true and correct as of the Restatement Effective
Date, except to the extent that such representation or warranty expressly
relates solely to an earlier date.
(f) No Termination Event. No Incipient Termination Event or
Termination Event hereunder shall have occurred and be continuing or would
result after giving effect to any of the transactions contemplated on the
Restatement Effective Date.
(g) Confirmation of Commercial Paper Ratings. Each Purchaser
Agent shall have received written confirmation from each Rating Agency that the
then current rating of the Commercial Paper issued by their related Conduit
Purchaser shall not be withdrawn or downgraded after giving effect to this
Agreement and the transactions contemplated thereby.
(h) Corporate Proceedings; Etc. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and the Third
Amendment to Sale and Contribution Agreement shall be satisfactory in all
respects in form and substance to the Purchasers.
The date on which each of the foregoing conditions has been satisfied shall be
referred to as the "Restatement Effective Date".
Section 3.02. Conditions Precedent to All Purchases. No Purchaser
shall be obligated to purchase Purchaser Interests hereunder on any Purchase
Date if, as of the date thereof:
(a) any representation or warranty of the Seller or the Servicer
contained herein or in any of the other Related Documents shall be untrue or
incorrect in any material respect, as of such date, either before or after
giving effect to the Purchase of Purchaser Interests on such date and to the
application of the proceeds therefrom, except to the extent that such
representation or warranty expressly relates to an earlier date and except for
changes therein expressly permitted by this Agreement;
(b) any event shall have occurred, or would result from the
Purchase of Purchaser Interests on such Purchase Date or from the application of
the proceeds therefrom, that constitutes (i) a Termination Event or an Event of
Servicer Termination, or (ii) except in the case of Reinvestment Purchases, an
Incipient Termination Event or an Incipient Servicer Termination Event;
(c) the Seller shall not be in compliance with any of its
covenants or other agreements set forth herein;
GE Capital Corporation/Blue Hill II, Inc.
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(d) the Facility Termination Date shall have occurred;
(e) either before or after giving effect to such Purchase and to
the application of the proceeds therefrom, a Purchase Excess would exist;
(f) the Purchaser Interests sold hereunder would after giving
effect to such purchase, exceed 100%;
(g) the Originator, the Seller or the Servicer shall fail to have
taken such other action, including delivery of approvals, consents, opinions,
documents and instruments to the Purchasers and the Administrative Agent, (i) as
any Purchaser, any Purchaser Agent or the Administrative Agent may reasonably
request, or (ii) as either Rating Agency may request; or
(h) the Administrative Agent shall have determined that any event
or condition has occurred that has had, or could reasonably be expected to have
or result in, a Material Adverse Effect.
The delivery by the Seller of a Capital Purchase Request and the
acceptance by the Seller of the funds from such Capital Purchase on any Purchase
Date shall be deemed to constitute, as of any such Purchase Date, a
representation and warranty by the Seller that the conditions in this Section
3.02 have been satisfied.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Seller. To
induce each Purchaser to purchase the Purchaser Interests and the Administrative
Agent and the Purchaser Agents to take any action hereunder, the Seller makes
the following representations and warranties to each Purchaser, each Purchaser
Agent and the Administrative Agent, each and all of which shall survive the
execution and delivery of this Agreement.
(a) Corporate Existence and Power. Each of the Seller and each
Bergen Entity is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and has all corporate
power and authority and all governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which its
business is now conducted, except where failure to obtain such license,
authorization, consent or approval would not have (i) an adverse effect on its
ability to perform its obligations under, or the enforceability of, any Related
Document, (ii) a material adverse effect on its business or financial condition,
(iii) an adverse effect on the interests of the Administrative Agent or any
Purchaser under any Related Document or (iv) an adverse effect on the
enforceability or collectibility of any Transferred Receivable. Each Significant
Subsidiary as defined in the Credit Facility as of the Restatement Effective
Date is set forth on Schedule 4.01(a) hereto.
(b) Corporate Authorization and No Contravention. The execution,
delivery and performance by each of the Seller and each other Bergen Entity of
each Related Document to which it is a party, and the creation of all security
interests provided for herein and therein
GE Capital Corporation/Blue Hill II, Inc.
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(i) are within its corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) do not contravene or constitute a default
under (A) any applicable law, rule or regulation, (B) its charter or bylaws or
(C) any material agreement, order or other instrument to which it is a party or
its property is subject and (iv) will not result in any Adverse Claim on any
Transferred Receivable or any Seller Collateral or give cause for the
acceleration of any indebtedness of the Seller or any other Bergen Entity.
(c) No Consent Required. No approval, authorization or other
action by, or filings with, any Governmental Authority or other Person is
required in connection with the execution, delivery and performance by the
Seller or any other Bergen Entity of any Related Document to which it is a party
or any transaction contemplated thereby except with respect to UCC filings
contemplated by the Related Documents and as indicated on the Chattel Paper
Report delivered by the Seller on the Closing Date, and such exceptions
indicated on the Chattel Paper Report will not result in a Material Adverse
Effect.
(d) Binding Effect. Each Related Document to which the Seller or
any other Bergen Entity is a party constitutes the legal, valid and binding
obligation of such Person enforceable against that Person in accordance with its
terms, except as limited by bankruptcy, insolvency, or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights generally and subject to general principles of equity.
(e) Perfection of Ownership Interest. Immediately preceding its
sale of Transferred Receivables to the Seller, the Originator was the owner of,
and effectively sold, such Transferred Receivables to the Seller, free and clear
of any Adverse Claim. The Seller owns the Transferred Receivables, and all of
its other properties and assets free of any Adverse Claim other than the
interests of the Conduit Purchasers and the Committed Purchasers, and their
respective successors and assigns (through the Administrative Agent) therein
that are created hereby, and each Purchaser shall at all times have a valid
undivided percentage ownership interest, which shall be a first priority
perfected security interest for purposes of Article 9 of the applicable Uniform
Commercial Code, in the Purchaser Interests, the Transferred Receivables and
Seller Collateral.
(f) Accuracy of Information. All information furnished by the
Seller, any other Bergen Entity or any Affiliate of any such Person to the
Administrative Agent, any Purchaser Agent or any Purchaser in connection with
any Related Document, or any transaction contemplated thereby, is true and
accurate in all material respects (and is not incomplete by omitting any
information necessary to prevent such information from being materially
misleading).
(g) No Defaults or Violations. None of the Seller or any other
Bergen Entity is in default of any contractual obligation or in violation of any
order, rule or regulation of any Governmental Authority, which default or
violation may result in a Material Adverse Effect.
(h) No Actions, Suits or Material Adverse Change. Except for (i)
matters disclosed in writing to the Administrative Agent prior to the
Restatement Effective Date, (ii) matters disclosed in reports filed with the
Securities and Exchange Commission under the Securities Act of 1934, as amended,
(iii) if the Closing Date occurs before, or less than 10 days
GE Capital Corporation/Blue Hill II, Inc.
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after, the release of the Parent's audited financial statements for the fiscal
year ending September 30, 2000 (the "2000 Audited Financials"), (A) matters
disclosed in the Parent's audited financial statements as at and for the fiscal
year ending September 30, 1999 (the "1999 Audited Financials"), (B) no greater
than a $66,700,000 provision for accounts receivables, (C) no greater than
$505,000,000 in charges against goodwill related to PharMerica in the fourth
quarter of the fiscal year-ended September 30, 2000, and (D) no greater than
$26,000,000 in other special charges, and (iv) if the Closing Date occurs 10 or
more days after the release of the 2000 Audited Financials, matters disclosed in
the 2000 Audited Financials, there has been no material adverse change in the
financial condition, business, operations or prospects of the Parent. Since the
last day of the fiscal year covered by the Applicable Financials, (x) there has
been no material adverse change in the quality or collectibility of the
Receivables, taken as a whole, or in the Seller's, Servicer's or Originator's
financial condition, business, operations or prospects and (y) no material
litigation, investigation or tax audits have commenced against any Bergen
Entity. Since its formation, there has been no material adverse change in the
Seller's financial condition, business, operations or prospects. Since the
Closing Date, there has been no material adverse change in the ability of the
Seller or any other Bergen Entity to perform its obligations under any Related
Document.
(i) Accuracy of Exhibits. All information on the Schedules hereto
is true and complete in all material respects, subject to any changes permitted
by, and notified to the Administrative Agent and the Purchaser Agents in
accordance with, Article V. With respect to each of the Seller and the
Originator (i) their respective chief executive offices are located at the
respective address for notices set forth in this Agreement; (ii) the respective
offices where all of the Records with respect to any Receivables are kept are
listed on Schedule 4.01(i) hereto; (iii) each, within the last five years, has
operated only under the trade names identified in Schedule 4.01(i) hereto, and,
within the last five years, has not changed its name, merged or consolidated
with any other corporation or been the subject of any proceeding under ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (Bankruptcy), except as disclosed in Schedule 4.01(i) hereto,
(iv) each is a "registered organization" (as defined in Section 9-102(a)(70) of
the UCC) and is organized or incorporated in the jurisdiction set forth on
Schedule 4.01(i) hereto, for purposes of Article 9 of the UCC, and each is (and
at all times) located in such jurisdiction, and (v) the organizational
identification number for each is set forth Schedule 4.01(i) hereto.
(j) Sales by the Originator. Each sale by the Originator to the
Seller of the Transferred Receivables has been made in accordance with the terms
of the Purchase Agreement, including the payment by the Seller to the Originator
of the purchase price described in the Sale and Contribution Agreement. Each
such sale has been made for "reasonably equivalent value" (as such term is used
in Section 548 of the Bankruptcy Code) and not for or on account of "antecedent
debt" (as such term is used in Section 547 of the Bankruptcy Code) owed by the
Originator to the Seller.
(k) Solvency. Both before and after giving effect to (i) the
transactions contemplated by this Agreement and the other Related Documents and
(ii) the payment and accrual of all transaction costs in connection with the
foregoing, the Seller is and will be Solvent.
(l) Taxes. The Seller has filed all material tax returns and
reports required by law to have been filed by it and has paid all material taxes
and governmental charges thereby
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shown to be owing, except any such taxes or charges which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
(m) ERISA. During the twelve-consecutive-month period prior to
the date of the execution and delivery of this Purchase Agreement and prior to
the date of any Purchase hereunder, no steps have been taken by the PBGC to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which might result in the incurrence by the
Originator or any ERISA Affiliate of any material liability, fine or penalty.
Neither the Originator nor any ERISA Affiliate has any contingent liability with
respect to any post-retirement benefit under a Welfare Plan that has or could
reasonably be expected to have a Material Adverse Effect, other than liability
for continuation coverage described in Part 6 of Title I of ERISA. The Seller
has not incurred and does not expect to incur any liabilities (except for
premium payments arising in the ordinary course of business) payable to the PBGC
under ERISA.
(n) Investment Company Act. The Seller is not an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, 15 U.S.C. Sections 80a et seq., and any regulations
promulgated thereunder.
(o) Securities Regulation. The Purchase by the Seller of the
Receivables under the Sale and Contribution Agreement and the Purchase of the
Purchaser Interests by the Purchasers hereunder and the application of the
proceeds thereof, in each case in accordance with the provisions of the
applicable Related Document, will not violate any applicable provisions of the
Securities Act or other applicable securities laws.
(p) Nonconsolidation. The Seller is operated in such a manner
that the separate corporate existence of the Seller, on the one hand, and any
member of the Parent Group, on the other hand, would not be disregarded in the
event of the bankruptcy or insolvency of any member of the Parent Group thereof
and, without limiting the generality of the foregoing:
(i) the Seller has not engaged, and does not presently
engage, in any activity other than those activities expressly permitted
under the Seller's organizational documents and the Related Documents,
nor has the Seller entered into any agreement other than this
Agreement, the other Related Documents to which it is a party and, with
the prior written consent of the Administrative Agent, any other
agreement necessary to carry out more effectively the provisions and
purposes hereof or thereof;
(ii) the Seller maintains a business office separate from
that of each member of the Parent Group;
(iii) the financial statements and books and records of the
Seller and the Originator reflect the separate corporate existence of
the Seller;
(iv) except as otherwise expressly permitted hereunder,
under the other Related Documents and under the Seller's organizational
documents, no Parent Group
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member (A) pays the Seller's expenses, (B) guarantees the Seller's
obligations, or (C) advances funds to the Seller for the payment of
expenses or otherwise; and
(v) the Seller does not act as agent for any Parent Group
member, but instead presents itself to the public as a corporation
separate from each such Person and independently engaged in the
business of purchasing and financing Transferred Receivables.
(q) Deposit and Lockbox Accounts. Schedule 4.01(q) lists all
banks and other financial institutions at which the Seller maintains deposit,
lockbox or other bank accounts (including the Lockbox Accounts and Deposit
Accounts) as of the Restatement Effective Date, and such schedule correctly
identifies the name, address and telephone number of each depository and whether
such depository is a Lockbox Account Bank, Deposit Bank, or otherwise, the name
in which the account is held, a description of the purpose of the account and
whether such account is a Deposit Account, Lockbox Account or otherwise, and the
complete account number therefor (and, with respect to each Lockbox Account, the
lockbox number and address thereof).
(r) Transferred Receivables.
(i) Eligibility. Each Transferred Receivable designated as
an Eligible Receivable in each Investment Base Certificate constitutes
an Eligible Receivable as of the date of such Investment Base
Certificate.
(ii) Nonavoidability of Transfers. The Seller shall (A) have
received each Contributed Receivable as a contribution to the capital
of the Seller by the Originator and (B) have purchased each Sold
Receivable from the Originator for cash consideration, in each case in
an amount that constitutes fair consideration and reasonably equivalent
value therefor. Each Sale of a Sold Receivable effected pursuant to the
terms of the Sale and Contribution Agreement shall not have been made
for or on account of an antecedent debt owed by the Originator thereof
to the Seller and no such Sale is or may be avoidable or subject to
avoidance under any bankruptcy laws, rules or regulations.
(s) Representations and Warranties in Other Related Documents.
Each of the representations and warranties of the Seller contained in the
Related Documents (other than this Agreement) is true and correct in all
material respects and the Seller hereby makes each such representation and
warranty to, and for the benefit of, the Purchasers, the Purchaser Agents and
the Administrative Agent as if the same were set forth in full herein.
(t) No Termination Event or Incipient Termination Event. No
Termination Event or Incipient Termination Event has occurred and is continuing
or will result after giving effect to this Agreement.
Section 4.02. Representations and Warranties of the Servicer. To
induce the Purchasers to purchase the Purchaser Interests and the Administrative
Agent and the Purchaser Agents to take any action required to be performed by it
hereunder, the Servicer represents and warrants to the Purchasers, the Purchaser
Agents and the Administrative Agent, which
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representation and warranty shall survive the execution and delivery of this
Agreement, that each of the representations and warranties of the Servicer
(whether made by the Servicer in its capacity as an Originator or as Servicer)
contained in any Related Document is true and correct in all material respects
and, if made by the Servicer in its capacity as an Originator, applies with
equal force to the Servicer in its capacity as Servicer, and the Servicer hereby
makes each such representation and warranty to, and for the benefit of, the
Purchasers, the Purchaser Agents and the Administrative Agent as if the same
were set forth in full herein. The Servicer further represents and warrants that
no Termination Event or Incipient Termination Event has occurred and is
continuing or will result after giving effect to this Agreement.
ARTICLE V.
GENERAL COVENANTS OF THE SELLER
Section 5.01. Affirmative Covenants of the Seller. The Seller
covenants and agrees that from and after the Closing Date and until the
Termination Date:
(a) Conduct of Business. The Seller will perform, and will cause
each other Bergen Entity and Significant Subsidiary to perform, all actions
necessary to remain duly incorporated, validly existing and in good standing in
its jurisdiction of incorporation and to maintain all requisite authority to
conduct its business in each jurisdiction in which it conducts business except
to the extent that such failure would not have a Material Adverse Effect.
(b) Compliance with Laws. The Seller will comply, and will cause
each other Bergen Entity to comply, with all laws, regulations, judgments and
other directions or orders imposed by any Governmental Authority to which such
Person or any Transferred Receivable or Seller Collateral may be subject, except
to the extent non-compliance would not have a Material Adverse Effect.
(c) Furnishing Information and Inspection of Records. The Seller
will furnish to the Administrative Agent, the Purchaser Agents and the
Purchasers such information (including non-financial information) concerning the
Originator's Receivables, the Transferred Receivables and the Seller Collateral
as the Administrative Agent, the Purchaser Agents or a Purchaser may reasonably
request. Twice a year (and at any time during the continuance of an Incipient
Termination Event or Termination Event), the Administrative Agent and the
Purchaser Agents may (at the expense of the Seller subject to the limitations
set forth in the Purchaser Group Fee Letters) have its auditors, which may
include an independent public accounting firm, conduct an audit of the Records
or make test verifications of the Originator's Receivables, the Transferred
Receivables and the Collections with respect to the Originator's Receivables and
the Transferred Receivables.
(d) Keeping Records.
(i) The Seller will, and will cause the Originator to, have
and maintain (A) administrative and operating procedures (including an
ability to recreate Records if originals are destroyed), (B) adequate
facilities, personnel and equipment and (C) all Records and other
information necessary or advisable for collecting the Transferred
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Receivables (including Records adequate to permit the immediate
identification of each new Transferred Receivable and all Collections
of, and adjustments to, each existing Receivable). The Seller will give
the Administrative Agent and the Purchaser Agents prior notice of any
material change in such administrative and operating procedures.
(ii) The Seller will, (A) at all times from and after the
date hereof, clearly and conspicuously ▇▇▇▇ its computer and master
data processing books and records with a legend describing the
Administrative Agent's interest (on behalf of the Purchasers) in the
Transferred Receivables and (B) so ▇▇▇▇ the original copy (or the
replacement copy with respect to which a Chattel Paper Agreement has
been executed by the Originator) of each contract relating to a
Transferred Receivable that consists of chattel paper and deliver to
the Administrative Agent all such contracts (including all multiple
originals of such contracts), with any appropriate endorsement or
assignment, or segregate (from all other receivables then owned or
being serviced by the Seller) the Transferred Receivables and all
contracts relating to each Transferred Receivable and hold in trust and
safely keep such contracts so legended in separate filing cabinets or
other suitable containers at such locations as the Administrative Agent
may specify.
(e) Perfection.
(i) The Seller will, and will cause the Originator to, at
its expense, promptly execute and deliver all instruments and documents
and take all action necessary or reasonably requested by the
Administrative Agent (including the execution and filing of financing
or continuation statements, amendments thereto or assignments thereof)
to enable the Administrative Agent, on behalf of the Purchasers and
Purchaser Agents, to exercise and enforce all its rights hereunder and
to vest and maintain vested in the Administrative Agent, on behalf of
the Purchasers and Purchaser Agents, a valid, first priority perfected
security interest in the Seller Collateral and proceeds thereof free
and clear of any Adverse Claim (and a perfected ownership interest in
the Transferred Receivables). The Administrative Agent will be
permitted to sign and file any continuation statements, amendments
thereto and assignments thereof that are consistent with the Related
Documents without the Seller's signature.
(ii) Each of the Seller and the Originator will at all times
maintain its chief executive offices within a jurisdiction in the USA
(other than in the states of Florida, Maryland and Tennessee) in which
Article 9 of the UCC is in effect. If the Seller or the Originator
moves its chief executive office to a location that imposes Taxes, fees
or other charges to perfect the Administrative Agent's, and the
Purchasers' interests hereunder or the Seller's interests under the
Purchase Agreement, the Seller will pay all such reasonable amounts and
any other reasonable costs and expenses incurred in order to maintain
the enforceability of the Related Documents, the Purchases and the
interests of the Administrative Agent and the Purchasers in the Seller
Collateral.
(f) Performance of Duties. The Seller will perform, and will
cause each other Bergen Entity and the Servicer (if an Affiliate) to perform,
its respective duties or obligations in accordance with the provisions of each
of the Related Documents. The Seller (at its expense) will, and will cause each
other Bergen Entity to, (i) fully and timely perform in all material
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respects all agreements required to be observed by it in connection with each
Receivable but in all respects necessary to comply with the following
subparagraphs (ii) and (iii), (ii) comply in all respects with the Credit and
Collection Policy, and (iii) refrain from any action that may impair the rights
of the Administrative Agent or the Purchasers in the Seller Collateral.
(g) Deposit of Collections. The Seller shall deposit or cause to
be deposited promptly into an Account, and in any event no later than the second
Business Day after receipt thereof, all Collections it may receive with respect
to any Transferred Receivable.
(h) Taxes. Each of the Seller and each Bergen Entity has filed
all material tax returns and reports required by law to have been filed by it
and has paid all material taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
Section 5.02. Reporting Requirements of the Seller.
(a) The Seller hereby agrees that, from and after the Closing
Date and until the Termination Date, it (i) shall, and shall cause each other
Bergen Entity to, maintain a system of accounting established and administered
in accordance with GAAP, and (ii) shall deliver or cause to be delivered to the
Purchasers, the Administrative Agent, the Purchaser Agents and, in the case of
paragraph (j) of Annex 5.02(a) only, to the Rating Agencies, the financial
statements, notices and other information at the times, to the Persons and in
the manner set forth in Annex 5.02(a).
(b) The Seller hereby agrees that, from and after the Closing
Date and until the Termination Date, it shall deliver or cause to be delivered
to the Purchasers, the Purchaser Agents and the Administrative Agent, the
Investment Reports (including Investment Base Certificates) at the times, to the
Persons and in the manner set forth in Annex 5.02(b).
Section 5.03. Negative Covenants of the Seller. The Seller
covenants and agrees that, without the prior written consent of the Purchasers
and the Administrative Agent, from and after the Closing Date until the
Termination Date:
(a) Sales and Adverse Claims Relating to Receivables. Except as
otherwise provided herein and except in connection with the transfer of
Receivables pursuant to a Distribution Center Consolidation, the Seller will
not, and will not permit the Originator or the Servicer to, (by operation of law
or otherwise) dispose of or otherwise transfer, or create or suffer to exist any
Adverse Claim upon, any material portion of the Transferred Receivables or any
proceeds thereof or any other property or assets of the Seller.
(b) Extension or Amendment of Transferred Receivables. Except as
otherwise permitted in Section 7.07(b), the Seller will not, and will not permit
the Originator or the Servicer to, extend, amend, rescind, modify, forgive,
discharge or cancel any Transferred Receivable.
(c) Change in Business or Credit and Collection Policy. The
Seller will not make any material change in the character of its business and
will not, and will not permit the
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Originator or the Servicer to, make any material change to the Credit and
Collection Policy without the prior written consent of the Administrative Agent
and the Purchaser Agents and provision of written notice to the Rating Agencies
by the Seller.
(d) Sale of Stock and Assets. The Seller shall not sell,
transfer, convey, assign or otherwise dispose of, or assign any right to receive
income in respect of, any of its properties or other assets any Transferred
Receivable or contract therefor or any of its rights with respect to any Account
or any other deposit account in which any Collections of any Transferred
Receivable are deposited except as otherwise expressly permitted by this
Agreement or any of the other Related Documents.
(e) Capital Structure and Business. The Seller shall not (i)
transact business, other than in compliance with (A) its certificate of
incorporation and bylaws and (B) the Related Documents, and in such corporate
and trade names as are set forth on Schedule 4.01(i), or (ii) amend its
certificate or articles of incorporation or bylaws.
(f) Mergers, Subsidiaries, Etc. The Seller shall not directly or
indirectly, by operation of law or otherwise, (i) form or acquire any
Subsidiary, or (ii) merge with, consolidate with, acquire all or substantially
all of the assets or capital Stock of, or otherwise combine with or acquire, any
Person.
(g) Sale Characterization; Sale and Contribution Agreement. The
Seller shall not make statements or disclosures, prepare any financial
statements or in any other respect account for or treat the transactions
contemplated by the Sale and Contribution Agreement (including for accounting,
tax and reporting purposes) in any manner other than (i) with respect to each
Sale of each Sold Receivable effected pursuant to the Sale and Contribution
Agreement, as a true sale and absolute assignment of the title to and sole
record and beneficial ownership interest of the Transferred Receivables by the
Originator to the Seller and (ii) with respect to each contribution of
Contributed Receivables thereunder, as an increase in the stated capital of the
Seller.
(h) Indebtedness. The Seller shall not create, incur, assume or
permit to exist any Debt, except (i) Debt of the Seller to any Affected Party,
Indemnified Person or any other Person expressly permitted by this Agreement or
any other Related Document, (ii) deferred taxes, (iii) unfunded pension fund and
other employee benefit plan obligations and liabilities to the extent they are
permitted to remain unfunded under applicable law, (iv) indorser liability in
connection with the indorsement of negotiable instruments for deposit or
collection in the ordinary course of business, and (v) Debt of the Seller to the
Originator under the Subordinated Note.
(i) Commingling. The Seller shall not deposit or permit the
deposit of any funds that do not constitute Collections of Transferred
Receivables into any Lockbox Account or Deposit Account, except inadvertent
deposits of checks from time to time in immaterial amounts that are readily
traceable.
(j) Restricted Payments by the Seller. Except for the
Subordinated Note, the Seller shall not enter into any lending or borrowing
transaction with any other Person. The
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Seller shall not at any time make payments with respect to the Subordinated Note
if after giving effect to such payments a Purchase Excess would exist or an
Incipient Termination Event or Termination Event would otherwise result
therefrom or be continuing. The Seller will not purchase or redeem any shares of
the capital stock of the Seller, declare or pay dividends thereon (other than
stock dividends), or make any distribution to stockholders or set aside any
funds for any such purpose; provided, however, the foregoing shall not prevent
the Seller from paying cash dividends on any day if (i) after giving effect to
such payment, the Seller's Net Worth Percentage would not be less than 10%, (ii)
after giving effect to any such advance or distribution, a Purchase Excess would
not exist nor would a Termination Event otherwise result therefrom, and (iii) on
such day or the immediately preceding day the Seller delivers to the
Administrative Agent and the Purchaser Agents a certificate in which the Seller
attests to and specifies (x) the calculation of the Seller's Net Worth
Percentage after giving effect to such payment, (y) that a Purchase Excess does
not exist and a Termination Event will not result as a result of such payment,
and (z) the principal outstanding on the Subordinated Note as of such date.
(k) Changes in Instructions to Obligors. The Seller shall not
make any change in its instructions to Obligors regarding the deposit of
Collections with respect to the Transferred Receivables.
(l) Investments. Except as otherwise expressly permitted
hereunder or under the other Related Documents, the Seller shall not make any
investment in, or make or accrue loans or advances of money to, any Person,
including any Stockholder, director, officer or employee of the Seller, the
Parent or any of the Parent's other Subsidiaries, through the direct or indirect
lending of money, holding of securities or otherwise, except with respect to
Transferred Receivables, and Permitted Investments.
(m) Related Documents. The Seller shall not modify the terms of
any policy or resolutions of its board of directors if such modification could
have or result in a Material Adverse Effect.
ARTICLE VI.
COLLECTIONS AND DISBURSEMENTS
Section 6.01. Establishment of Accounts.
(a) The Lockbox Accounts.
(i) The Seller has established with each Lockbox Account
Bank one or more Lockbox Accounts. If a Cash Management Event shall have
occurred and be continuing, the Administrative Agent may or, at the direction of
the Requisite Purchasers, shall, without prior notice to the Seller, take
exclusive dominion and control of each Lockbox Account and all monies,
instruments and other property then or thereafter on deposit therein, and the
Seller thereafter shall not make or cause to be made, nor shall the Seller
thereafter have any ability to make or cause to be made, any withdrawals from
any Lockbox Account except as provided in Section 6.01(c)(ii); provided, that
the
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Administrative Agent shall promptly notify the Seller and each Rating
Agency in writing of such action.
(ii) The Seller or the Servicer have instructed all existing
Obligors of Transferred Receivables, and shall instruct all future Obligors
of such Transferred Receivables, to make payments in respect thereof (A) by
check or money order mailed to one or more lockboxes or post office boxes
for which there is an effective and binding Lockbox Agreement (each a
"Lockbox" and collectively the "Lockboxes") or (B) by wire transfer or
moneygram directly to a Lockbox Account. The Seller and the Servicer shall
endorse, to the extent necessary, all checks or other instruments received
in any Lockbox so that the same can be deposited in a Lockbox Account, in
the form so received (with all necessary endorsements), on the first
Business Day after the date of receipt thereof. In addition, each of the
Seller and the Servicer shall deposit or cause to be deposited into a
Lockbox Account all cash, checks, money orders or other proceeds of
Transferred Receivables or Seller Collateral received by it other than in a
Lockbox or Lockbox Account, in the form so received (with all necessary
endorsements), not later than the close of business on the second Business
Day following the date of receipt thereof, and until so deposited all such
items or other proceeds shall be held in trust for the benefit of the
Administrative Agent (for the benefit of the Purchasers, ratably, in
accordance with their respective Capital Investments). Neither the Seller
nor the Servicer shall make any deposits into a Lockbox or Lockbox Account
except in accordance with the terms of this Agreement or any other Related
Document.
(iii) If, for any reason, a Lockbox Account Agreement
terminates or any Lockbox Account Bank fails to comply with its obligations
under the Lockbox Account Agreement to which it is a party, then the Seller
shall promptly notify all Obligors of Transferred Receivables who had
previously been instructed to make wire payments to a Lockbox Account
maintained at any such Lockbox Account Bank to make all future payments to
a new Lockbox Account in accordance with this Section 6.01(a)(iii). The
Seller shall not close any such Lockbox Account unless it shall have (A)
received the prior written consent of the Administrative Agent, (B)
established a new account with the same Lockbox Account Bank or with a new
depositary institution satisfactory to the Administrative Agent, (C)
entered into an agreement covering such new account with such Lockbox
Account Bank or with such new depositary institution substantially in the
form of such Lockbox Account Agreement or that is satisfactory in all
material respects to the Administrative Agent (whereupon, for all purposes
of this Agreement and the other Related Documents, such new account shall
become a Lockbox Account, such new agreement shall become a Lockbox Account
Agreement and any new depositary institution shall become a Lockbox Account
Bank), and (D) taken all such action as the Administrative Agent shall
require to grant and perfect a first priority Lien in such new Lockbox
Account to the Purchasers under Section 8.01 of this Agreement. Except as
permitted by this Section 6.01(a), neither the Seller nor the Servicer
shall open any new Lockbox or Lockbox Account without the prior written
consent of the Administrative Agent, which consent shall not be
unreasonably withheld.
(b) Deposit Account. The Seller has established with each Deposit
Bank one or more Deposit Accounts, and each such Deposit Bank has executed a
Deposit Account
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Agreement. If a Cash Management Event shall have occurred and be continuing, the
Administrative Agent may or, at the direction of the Requisite Purchasers,
shall, without prior notice to the Seller, take exclusive dominion and control
of each Deposit Account and all monies, instruments and other property then or
thereafter on deposit therein, and the Seller thereafter shall not make or cause
to be made, nor shall the Seller thereafter have any ability to make or cause to
be made, any withdrawals from any Deposit Account except as provided in Section
6.01(c)(ii); provided, that the Administrative Agent shall promptly notify the
Seller and each Rating Agency in writing of such action.
(i) Neither the Seller nor the Servicer shall make any
deposits into a Deposit Account except in accordance with the terms of this
Agreement or any other Related Document.
(ii) If, for any reason, a Deposit Account Agreement
terminates or any Deposit Bank fails to comply with its obligations under
the Deposit Account Agreement to which it is a party, then the Seller and
Servicer shall immediately stop depositing Collections into such Deposit
Account. The Seller shall not close any such Deposit Account unless it
shall have (A) received the prior written consent of the Administrative
Agent, (B) established a new account with the same Deposit Bank or with a
new depositary institution reasonably satisfactory to the Administrative
Agent, (C) entered into an agreement covering such new account with such
Deposit Bank or with such new depositary institution substantially in the
form of such Deposit Account Agreement or that is satisfactory in all
material respects to the Administrative Agent (whereupon, for all purposes
of this Agreement and the other Related Documents, such new account shall
become a Deposit Account, such new agreement shall become a Deposit Account
Agreement and any new depositary institution shall become a Deposit Bank),
and (D) taken all such action as the Administrative Agent shall reasonably
require to grant and perfect a first priority Lien in such new Deposit
Account to the Purchaser under Section 8.01 of this Agreement. Except as
permitted by this Section 6.01(b), neither the Seller nor the Servicer
shall open any new Deposit Account without the prior written consent of the
Administrative Agent, which shall not be unreasonably withheld.
(c) Agent's Account.
(i) Following the Cash Management Date, the Purchasers shall
establish and maintain the Agent's Account with the Depositary. The Agent's
Account shall be registered in the name of the Administrative Agent and the
Administrative Agent shall, subject to the terms of this Agreement, have
exclusive dominion and control thereof and of all monies, instruments and
other property from time to time on deposit therein.
(ii) If the Administrative Agent has taken dominion and
control over the Lockbox Accounts pursuant to Section 6.01(a)(i), the
Seller shall instruct each Lockbox Account Bank and Deposit Bank to
transfer, and the Seller hereby grants the Administrative Agent the
authority to instruct each such Lockbox Account Bank and Deposit Bank to
transfer, on each Business Day in same day funds, all available funds in
each Lockbox Account and Deposit Account to the Agent's Account, and the
Seller shall
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cause each Lockbox Account Bank and Deposit Bank to make such transfer. The
Purchasers, the Purchaser Agents and the Administrative Agent shall deposit
into the Agent's Account from time to time all monies, instruments and
other property received by any of them as proceeds of the Transferred
Receivables. On each Business Day prior to the Facility Termination Date
the Administrative Agent shall instruct and cause the Depositary (which
instruction may be in writing or by telephone confirmed promptly thereafter
in writing) to release funds on deposit in the Agent's Account in the order
of priority set forth in Section 6.04. On each Business Day from and after
the Facility Termination Date, the Administrative Agent shall apply all
amounts when received in the Agent's Account in the order of priority set
forth in Section 6.06.
(iii) If, for any reason, the Depositary wishes to resign as
depositary of the Agent's Account or fails to carry out the instructions of
the Administrative Agent, then the Administrative Agent shall promptly
notify the Purchasers. Neither the Purchasers nor the Administrative Agent
shall close the Agent's Account unless (A) a new deposit account has been
established with the Depositary, (B) the Purchasers and the Administrative
Agent have entered into an agreement covering such new account with such
new depositary institution satisfactory in all respects to the
Administrative Agent (whereupon such new account shall become the Agent's
Account for all purposes of this Agreement and the other Related
Documents), and (C) the Purchasers and the Administrative Agent have taken
all such action as the Administrative Agent shall require to grant and
perfect a first priority Lien in such new Agent's Account to the
Administrative Agent on behalf of the Purchasers.
(d) Reserve Account. Following the Cash Management Date, the
Administrative Agent shall establish and maintain the Reserve Account with the
Depositary. The Reserve Account shall be registered in the name of the
Administrative Agent and the Administrative Agent shall, subject to the terms of
this Agreement, have exclusive dominion and control thereof and of all monies,
instruments and other property from time to time on deposit therein.
(e) Distribution Center Consolidation.
(i) Notwithstanding anything in the foregoing Section 6.01 to
the contrary, upon the occurrence of a Distribution Center Consolidation in
which a BH2 Designated Distribution Center is being consolidated into an
ARFC Designated Distribution Center and upon satisfaction of the related
conditions precedent set forth in Section 8.13 of the Sale and Contribution
Agreement (other than subsection (e) thereof), (A) the Seller shall deliver
an amended and restated Schedule 4.01(q) to delete reference to the
Reassigned Accounts, and (B) (1) the Seller shall transfer such Reassigned
Accounts to the Originator or any other Person designated by the
Originator, and the Seller shall request, and the Administrative Agent
agrees, to terminate or assign (as requested by the Seller) any Lockbox
Account Agreement or Deposit Account Agreement with respect to such
Reassigned Accounts, or (2) the Seller and Administrative Agent shall take
such other action with respect to the Reassigned Accounts as the Seller and
Administrative Agent shall agree.
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(ii) Upon the occurrence of a Distribution Center
Consolidation in which an ARFC Designated Distribution Center is being
consolidated into a BH2 Designated Distribution Center and upon
satisfaction of the related conditions precedent set forth in Section 8.13
of the Sale and Contribution Agreement (other than subsection (d) thereof),
(A) the Seller shall deliver an amended and restated Schedule 4.01(q) to
reflect the Accounts of such ARFC Designated Distribution Center, and (B)
the Seller shall (1) provide the Administrative Agent with satisfactory
evidence that such Accounts have been transferred to the Seller, and
deliver an executed Lockbox Account Agreement or Deposit Account Agreement,
as applicable, with respect to each such Account or deliver an assignment
of the account control agreement in effect with respect to the security
interest of JPMorgan Chase and DFC in such Account, in form and substance
satisfactory to the Administrative Agent, or (2) take such other action
with respect to such Accounts as the Seller and the Administrative Agent
shall agree.
Section 6.02. Collections and Disbursement Procedures Prior to the
Cash Management Date and During the Revolving Period.
(a) On each Business Day prior to the Cash Management Date and
during the Revolving Period, no later than 12:00 Noon (New York time):
(i) if, on the immediately preceding Business Day, the
Administrative Agent shall have notified the Seller of any Purchase Excess,
then the Seller shall pay an amount equal to any Purchase Excess to be
applied in reduction of Aggregate Capital Investment, to the Purchasers
ratably based on the amount of their respective Capital Investments; and
(ii) if, pursuant to a Repayment Notice, the Seller has
requested a reduction of the Aggregate Capital Investment of the
Purchasers, then the Seller shall pay to the Purchasers, ratably based on
the amount of their respective Capital Investments, an amount equal to the
lesser of (A) the amount of such requested reduction of Aggregate Capital
Investment and (B) such balance.
(b) On each Settlement Date prior to the Cash Management Date and
during the Revolving Period, as soon as practicable but in any event no later
than 12:00 Noon (New York time), the Seller shall pay in the following priority:
(i) to the applicable Purchasers (or, if applicable, any
Indemnified Person or Affected Party), ratably, in accordance with the
Purchasers' respective Capital Investments, or with respect to clauses (C)
and (D) below, in accordance with the amount owed, an amount equal to:
(A) the accrued and unpaid Daily Yield as of the end of
the immediately preceding Settlement Period;
(B) the unpaid Accrued Purchaser Group Commitment Fee as
of the end of the immediately preceding Settlement Period;
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(C) all Additional Amounts incurred and payable to any
Affected Party as of the end of the immediately preceding
Settlement Period;
(D) all other amounts accrued and payable under this
Agreement (including Indemnified Amounts incurred and payable
to any Indemnified Person) as of the end of the immediately
preceding Settlement Period to the extent not already paid; and
(E) if a Purchase Excess exists on such date, an amount
equal to such excess to the extent not already paid, to be
applied in reduction of Aggregate Capital Investment; and
(ii) to the Servicer on behalf of the Seller, an amount equal
to its accrued and unpaid Servicing Fee as of the end of the immediately
preceding Settlement Period.
Section 6.03. Collections and Disbursement Procedures After the Cash
Management Date and During the Revolving Period: Funding of Agent's Account. On
and after the Cash Management Date, as soon as practicable, and in any event, no
later than 12:00 Noon (New York time) on each Business Day:
(a) the Administrative Agent, the Seller and the Servicer shall
cause the Lockbox Account Banks and Deposit Banks to make the transfer to the
Agent's Account required to be made on such Business Day pursuant to Section
6.01(c)(ii);
(b) the Applicable Purchasers (or the related Purchaser Agent on
its behalf) or the Administrative Agent shall deposit in the Agent's Account the
amount, if any, required pursuant to Section 2.04(b)(i);
(c) if on any Business Day the Seller is required to make other
payments under this Agreement not previously retained out of Collections on
Transferred Receivables (including Additional Amounts and Indemnified Amounts
not previously paid), then the Seller shall deposit an amount equal to such
payments in the Agent's Account;
(d) if on the immediately preceding Business Day, a Collection on
Transferred Receivables is to be adjusted pursuant to Section 3.2 of the Sale
and Contribution Agreement, then the Seller shall deposit in the Agent's Account
cash in the amount so received from the Originator for such payment;
(e) if on any Business Day the Originator repurchases Transferred
Receivables in connection with a Distribution Center Consolidation, then the
Seller shall deposit in the Agent's Account cash in the amount so received from
the Originator for such payment;
(f) the Seller shall deposit cash in the Agent's Account in the
amount equal to the Outstanding Balance of any Transferred Receivable the Seller
elects to pay pursuant to the first proviso of Section 8.06(d);
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(g) if, on the immediately preceding Business Day, the
Administrative Agent shall have notified the Seller of any Purchase Excess, then
the Seller shall deposit cash in the amount of such Purchase Excess in the
Agent's Account;
(h) if, pursuant to a Repayment Notice, the Seller has
requested a reduction of the Aggregate Capital Investment of the Purchasers,
then the Seller shall deposit cash in the amount equal to the amount of such
requested reduction of Aggregate Capital Investment;
(i) the Servicer shall deposit in the Agent's Account the
Outstanding Balance of any Transferred Receivable the Servicer elects to pay
pursuant to Section 7.04;
(j) if, on or before the second Business Day immediately
preceding any Settlement Date, the Administrative Agent shall have notified the
Seller of any Reserve Account Deficiency pursuant to Section 6.05(b), then the
Seller shall deposit cash in the amount of such deficiency in the Agent's
Account on such Settlement Date; and
(k) from and after the Facility Termination Date, the
Administrative Agent shall transfer all amounts on deposit in the Reserve
Account to the Agent's Account.
Section 6.04. Daily Disbursements From the Agent's Account
After the Cash Management Date and During the Revolving Period. On each Business
Day no later than 12:00 Noon (New York time) after the Cash Management Date and
during the Revolving Period, and following the transfers made pursuant to
Section 6.03, the Administrative Agent shall disburse the amounts then on
deposit in the Agent's Account and its related subaccounts in the following
priority:
(a) to the Reserve Account the amount of any Reserve Account
Deficiency deposited pursuant to Section 6.03(j);
(b) to the Reserve Account an amount equal to the sum of:
(i) Daily Yield;
(ii) the Yield Shortfall as of the immediately
preceding Business Day;
(iii) the Accrued Servicing Fee;
(iv) the Servicing Fee Shortfall as of the immediately
preceding Business Day;
(v) the Accrued Purchaser Group Commitment Fee; and
(vi) the Purchaser Group Commitment Fee Shortfall as of
the immediately preceding Business Day;
(vii) to the Purchasers an amount equal to the deposits
made in the Agent's Account pursuant to Section 6.03(c) and not
otherwise disbursed pursuant to
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Section 6.04(a), to be disbursed based on the amounts owed, ratably
to the applicable Purchasers;
(c) an amount equal to any Purchase Excess to be applied in
reduction of Aggregate Capital Investment, to the Purchasers ratably based on
the amount of their respective Capital Investments;
(d) if, pursuant to a Repayment Notice, the Seller has
requested a reduction of the Aggregate Capital Investment of the Purchasers,
then to the Purchasers, ratably based on the amount of their respective Capital
Investments, the lesser of (i) the amount of such requested reduction of
Aggregate Capital Investment and (ii) such balance; and
(e) after the payment of each of the amounts listed in
Sections 6.04(a), (b), (c) and (d), the Administrative Agent shall deposit in
the Seller Account the balance of any amounts remaining after making the
foregoing disbursements.
Section 6.05. Disbursements From the Reserve Account;
Settlement Date Procedures; After the Cash Management Date and During the
Revolving Period.
(a) On each Settlement Date after the Cash Management Date
and during the Revolving Period, the amounts on deposit in the Reserve Account
shall be disbursed or retained by the Administrative Agent in the following
priority:
(i) to the applicable Purchasers (or, if applicable, any
Indemnified Person or Affected Party), ratably, in accordance with the
Purchasers' respective Capital Investments, or with respect to clauses
(C) and (D) below, in accordance with the amount owed, an amount equal
to:
(A) the accrued and unpaid Daily Yield as of the end
of the immediately preceding Settlement Period;
(B) the unpaid Accrued Purchaser Group Commitment
Fee as of the end of the immediately preceding Settlement
Period;
(C) all Additional Amounts incurred and payable to
any Affected Party as of the end of the immediately
preceding Settlement Period;
(D) all other amounts accrued and payable under this
Agreement (including Indemnified Amounts incurred and
payable to any Indemnified Person) as of the end of the
immediately preceding Settlement Period to the extent not
already transferred pursuant to Section 6.04(b)(i); and
(E) if a Purchase Excess exists on such date, an
amount equal to such excess to the extent not already
transferred pursuant to Section 6.04(c), to be applied in
reduction of Aggregate Capital Investment;
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(ii) to the Servicer on behalf of the Seller, an amount
equal to its accrued and unpaid Servicing Fee as of the end of the
immediately preceding Settlement Period;
(iii) to be retained in the Reserve Account, an amount
equal to the Accrued Monthly Yield, Accrued Purchaser Group Commitment
Fee and Accrued Servicing Fee as of such date; and
(iv) to the Seller Account, the balance of any funds
remaining after retaining or disbursing the foregoing amounts.
(b) No later than the second Business Day immediately
preceding each Settlement Date, the Administrative Agent shall determine and
notify the Seller of any Reserve Account Deficiency for the preceding Settlement
Period, and the Seller shall on and after the Cash Management Date, deposit cash
in the amount of such Reserve Account Deficiency to the Agent's Account pursuant
to Section 6.03(j).
Section 6.06. Liquidation Settlement Procedures. On each
Business Day from and after the Facility Termination Date until the Termination
Date, the Administrative Agent shall, as soon as practicable, transfer all
amounts then on deposit in the Reserve Account to the Agent's Account and shall
transfer all amounts in the Agent's Account (including amounts transferred
pursuant to Section 6.03(j) and amounts which are not allocable to the Purchaser
Interests) in the following priority:
(a) if an Event of Servicer Termination has occurred and a
Successor Servicer has assumed the responsibilities and obligations of the
Servicer in accordance with Section 11.02, then to the Successor Servicer an
amount equal to its accrued and unpaid Successor Servicing Fees and Expenses;
(b) to the Purchasers, ratably, in accordance with their
respective Capital Investments, an amount equal to accrued and unpaid Daily
Yield through and including the date of maturity (if any) of the Commercial
Paper (or other funding source) maintaining each Purchaser's respective Capital
Investment;
(c) to the Purchasers, ratably, in accordance with their
respective Capital Investments, an amount equal to the unpaid Aggregate Capital
Investment;
(d) to the Administrative Agent and to the Purchaser Agents,
in each case, ratably, in accordance with the amount owed, an amount equal to
accrued and unpaid Purchaser Group Commitment Fees;
(e) all Indemnified Amounts incurred and payable to any
Indemnified Person; and
(f) to the extent not paid pursuant to Section 6.06(a), to
the Servicer in an amount equal to the accrued and unpaid Servicing Fee; and
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(g) to the Seller Account, the balance of any funds remaining after
payment in full of all amounts set forth in this Section 6.06.
Section 6.07. Investment of Funds in Accounts. To the extent
uninvested amounts are on deposit in the Reserve Account on any given day during
the Revolving Period, the Administrative Agent shall invest all such amounts in
Permitted Investments selected by the Administrative Agent that mature no later
than the immediately succeeding Settlement Date. From and after the Facility
Termination Date, any investment of such amounts shall be solely at the
discretion of the Administrative Agent, subject to the restrictions described
above. All proceeds of any such investment shall be deposited upon receipt into
the Reserve Account.
Section 6.08. Termination Procedures.
(a) On the earlier of (i) the first Business Day after the Facility
Termination Date on which the Aggregate Capital Investment has been reduced to
zero or (ii) the Final Purchase Date, if the obligations to be paid pursuant to
Section 6.06 have not been paid in full, the Seller shall immediately deposit in
the Agent's Account an amount sufficient to make such payments in full.
(b) On the Termination Date, all amounts on deposit in the Agent's
Account and the Reserve Account shall be disbursed to the Seller and all
ownership interests or Liens of the Purchasers (and their assignees and
successors) in and to all Transferred Receivables and all Liens of the
Purchasers and the Administrative Agent in and to the Seller Collateral shall be
released by each Purchaser and the Administrative Agent. Such disbursement shall
constitute the final payment to which the Seller is entitled pursuant to the
terms of this Agreement, except to the extent that additional Collections are
received by the Administrative Agent, any Purchaser or any Purchaser Agent,
which Collections shall be promptly reported and remitted to the Seller or its
designee. Upon such termination, the Administrative Agent shall promptly (a)
execute and deliver UCC-3 termination statements to the Seller with respect to
each UCC-1 financing statement filed in favor of the Administrative Agent or any
Purchaser (or their assignees and successors) in connection with this Agreement,
(b) deliver written notice to all Lockbox Banks and Deposit Banks to remit to
the Servicer (unless otherwise directed by the Seller all payments, remittances
and other items that have been received by, or are maintained in, any Lockbox
Bank, Lockbox, Lockbox Account or Deposit Bank and to follow thereafter all
directions of the Servicer (unless otherwise directed by the Seller) with
respect to the continuance of termination of such Lockboxes and Deposit Accounts
and (c) promptly deliver to the Servicer (unless otherwise directed by the
Seller) all Collections and all other funds, records or other property of Seller
or the Servicer that may come, or have come, into the Administrative Agent's,
any Purchaser Agent's or any Purchaser's (or their assignees and successors)
custody or control.
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ARTICLE VII.
SERVICER PROVISIONS
Section 7.01. Appointment of the Servicer. Each of the Conduit
Purchasers and the Committed Purchasers hereby appoints the Servicer as its
agent, and the Seller hereby acknowledges such appointment, to service the
Transferred Receivables and enforce its rights and interests in and under each
Transferred Receivable and the rights and interests under the Contract therefor
as such rights and interests relate to such Transferred Receivable and to serve
in such capacity until the termination of its responsibilities pursuant to
Sections 9.02 or 11.01. In connection therewith, the Servicer hereby accepts
such appointment and agrees to perform the duties and obligations set forth
herein. The Servicer may, with the prior written consent of the Requisite
Purchasers and the Administrative Agent, subcontract with a Sub-Servicer for the
collection, servicing or administration of the Transferred Receivables;
provided, that (a) the Servicer shall remain liable for the performance of the
duties and obligations of such Sub-Servicer pursuant to the terms hereof and (b)
any Sub-Servicing Agreement that may be entered into and any other transactions
or services relating to the Transferred Receivables involving a Sub-Servicer
shall be deemed to be between the Sub-Servicer and the Servicer alone, and the
Purchasers, the Purchaser Agents and the Administrative Agent shall not be
deemed parties thereto and shall have no obligations, duties or liabilities with
respect to the Sub-Servicer.
Section 7.02. Duties and Responsibilities of the Servicer. Subject to
the provisions of this Agreement, the Servicer shall conduct the servicing,
administration and collection of the Transferred Receivables and shall take, or
cause to be taken, all actions that (a) may be necessary or advisable to
service, administer and collect each Transferred Receivable from time to time,
(b) the Servicer would take if the Transferred Receivables were owned by the
Servicer, and (c) are consistent with industry practice for the servicing of
such Transferred Receivables.
Section 7.03. Collections on Receivables.
(a) (i) In the event that the Servicer is unable to determine the
specific Transferred Receivables on which Collections have been received from
the Obligor thereunder but is able to determine that such Collections have been
received with respect to Transferred Receivables, the parties agree for purposes
of this Agreement only that such Collections shall be deemed to have been
received on such Transferred Receivables in the order in which they were
originated with respect to such Obligor. In the event that the Servicer is
unable to determine the specific Transferred Receivables on which discounts,
offsets or other non-cash reductions have been granted or made with respect to
the Obligor thereunder, the parties agree for purposes of this Agreement only
that such reductions shall be deemed to have been granted or made (A) prior to a
Termination Event, on such Transferred Receivables as determined by the
Servicer, and (B) from and after the occurrence of a Termination Event, on
Eligible Receivables in the reverse order in which they were originated with
respect to such Obligor. (ii) In the event that the Servicer is unable to
determine the specific Receivables on which Collections have been received from
the Obligor thereunder and is unable to determine whether such Collections have
been received with respect to Transferred Receivables or with respect to ARFC
Designated Receivables, the parties agree for purposes of this Agreement, the
Sale and Contribution
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Agreement, the ASC/ARFC Purchase Agreement and the ARFC/JPMorgan Chase Purchase
Agreement only that such Collections shall be allocated among such Receivables
on a pro rata basis, based upon the outstanding balance of all Receivables in
respect of such Obligor net of all Collections and discounts, and any other
modifications, that reduce the Billed Amount of such Receivables.
(b) If the Servicer determines that amounts unrelated to the
Transferred Receivables (the "Unrelated Amounts") have been deposited in the
Agent's Account pursuant to Section 6.03, then the Servicer shall provide
written evidence thereof to the Purchasers, the Purchaser Agents and the
Administrative Agent no later than the first Business Day following the day on
which the Servicer had actual knowledge thereof, which evidence shall be
provided in writing and shall be otherwise satisfactory to each such Affected
Party. Upon receipt of any such notice, the Administrative Agent shall segregate
the Unrelated Amounts, remit such amounts to the Seller, and the same shall not
be deemed to constitute Collections on Transferred Receivables and shall not be
subject to the provisions of this Agreement.
Section 7.04. Authorization of the Servicer. Each of the Conduit
Purchasers and the Committed Purchasers hereby authorizes the Servicer, and the
Seller acknowledges such authorization, to take any and all reasonable steps in
its name and on its behalf necessary or desirable and not inconsistent with the
ownership of the Purchaser Interests purchased by such Purchaser hereunder and
the pledge of any Conduit Purchaser's Purchaser Interest by such Conduit
Purchaser to a Program Support Provider pursuant to a Program Document, in the
determination of the Servicer, to (a) collect all amounts due under any
Transferred Receivable, including endorsing its name on checks and other
instruments representing Collections on such Transferred Receivable, and execute
and deliver any and all instruments of satisfaction or cancellation or of
partial or full release or discharge and all other comparable instruments with
respect to any such Transferred Receivable and (b) after any Transferred
Receivable becomes a Defaulted Receivable and to the extent permitted under and
in compliance with applicable law and regulations, commence proceedings with
respect to the enforcement of payment of any such Transferred Receivable and the
related rights under the Contract therefor as such rights relate to such
Transferred Receivable and adjust, settle or compromise any payments due
thereunder, in each case to the same extent as the Originator could have done if
it had continued to own such Transferred Receivable. The Originator, the Seller,
the Administrative Agent, each Purchaser Agent and each Purchaser shall furnish
the Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder. Notwithstanding anything to the contrary contained herein, if
a Cash Management Event (other than an event specified in clause (g) of the
definition thereof) has occurred and is continuing, the Administrative Agent
shall have the absolute and unlimited right to direct the Servicer (whether the
Servicer is the Originator, the Parent or otherwise) (i) to commence or settle
any legal action to enforce collection of any Transferred Receivable or (ii) to
foreclose upon, repossess or take any other action that the Administrative Agent
deems necessary or advisable with respect thereto; provided, that in lieu of
commencing any such action or taking other enforcement action, the Seller may
direct the Servicer to pay on behalf of the Seller to the Applicable Purchaser,
the Capital Investment with respect to its Purchaser Interest in such
Transferred Receivable. In no event shall the Servicer be entitled to make any
Affected Party a party to any Litigation without such Affected Party's express
prior written consent, or to make the Seller a party to any Litigation without
the Administrative Agent's consent.
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Section 7.05. Servicing Fees. As compensation for its servicing
activities and as reimbursement for its reasonable expenses in connection
therewith, the Servicer shall be entitled to receive the Servicing Fees in
accordance with Sections 6.05 and 6.06. The Servicer shall be required to pay
for all expenses incurred by it in connection with its activities hereunder
(including any payments to accountants, counsel or any other Person) and shall
not be entitled to any payment therefor other than the Servicing Fees.
Section 7.06. Representations and Warranties of the Servicer. To
induce the Purchasers to purchase the Purchaser Interests and to take any action
required to be performed by it hereunder, the Servicer represents and warrants
to the Purchasers, the Purchaser Agents and the Administrative Agent, which
representation and warranty shall survive the execution and delivery of this
Agreement:
(a) Each of the representations and warranties of the Servicer
(whether made by the Servicer in its capacity as the Originator or as the
Servicer) contained in any Related Document is true and correct and, if made by
the Servicer in its capacity as the Originator, applies with equal force to the
Servicer in its capacity as the Servicer
(b) The Servicer is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and is
duly qualified to do business, and is in good standing, in every jurisdiction
where the nature of its business requires it to be so qualified, except to the
extent the failure to so qualify would not have a Material Adverse Effect.
(c) The execution, delivery and performance by the Servicer of this
Agreement and the other documents to be delivered by it hereunder (i) are within
the Servicer's corporate powers, (ii) have been duly authorized by all necessary
corporate action and (iii) do not contravene (1) the Servicer's charter or
bylaws, (2) any material law, rule or regulation applicable to the Servicer, (3)
any material contractual restriction binding on or affecting the Servicer or its
property or (4) any order, writ, judgment, award, injunction or decree binding
on or affecting the Servicer or its property. This Agreement has been duly
executed and delivered by the Servicer.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Servicer of this Agreement or
any other document to be delivered by it hereunder.
(e) This Agreement constitutes the legal, valid and binding obligation
of the Servicer enforceable against the Servicer in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(f) If the Servicer is the Originator or one of its Affiliates, each
Monthly Report, Investment Report, information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by the
Servicer on behalf of the Seller or by or on
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behalf of the Originator to the Administrative Agent, the Purchaser Agents or
the Purchasers in connection with this Agreement is correct in all material
respects as of its date or (except as otherwise disclosed to such Person at such
time) as of the date so furnished, and no such document contains any untrue
statement of a material fact or omits to state a fact necessary in order to make
the statements contained therein, in the light of the circumstances under which
they were made, not materially misleading.
(g) No proceeds of any purchase or reinvestment hereunder will be used
to acquire any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended, or for any other
purpose that might cause any portion of such proceeds to be considered a
"purpose credit" within the meaning of Regulations T, U or X of the Federal
Reserve Board. The Seller does not own any equity security of a class which is
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended.
Section 7.07. Covenants of the Servicer. The Servicer covenants and
agrees that from and after the Closing Date and until the Termination Date:
(a) Ownership of Transferred Receivables. The Servicer shall identify
the Transferred Receivables clearly and unambiguously in its Servicing Records
to reflect that such Transferred Receivables have been sold or contributed to
the Seller and, following the Purchase of Purchaser Interests in such
Transferred Receivables under this Agreement, are subject to the interest of the
Conduit Purchasers or Committed Purchasers, as applicable.
(b) Compliance with Credit and Collection Policies. The Servicer shall
comply in all respects with the Credit and Collection Policies with respect to
each Transferred Receivable and the Contract therefor. The Servicer shall not
materially amend, waive or modify any term or provision of the Credit and
Collection Policies without the prior written consent of the Administrative
Agent.
(c) Covenants in Other Related Documents. The Servicer shall perform,
keep and observe all covenants applicable to it in its capacity as an Originator
under the Sale and Contribution Agreement and the other Related Documents
(including those covenants set forth in Sections 5.1 and 5.2 of the Sale and
Contribution Agreement) and the Servicer hereby agrees to be bound by such
covenants in its capacity as the Servicer hereunder for the benefit of the
Purchasers, the Purchaser Agents and the Administrative Agent as if the same
were set forth in full herein.
(d) Servicer Information. The Servicer shall furnish to the
Administrative Agent and the Purchaser Agents such information with respect to
the Receivables (including, but not limited to, its procedures for selecting
Transferred Receivables for sale, its procedures for segregating Transferred
Receivables from Receivables other than Transferred Receivables, and its
standards and procedures for selling goods or services on credit) as the
Administrative Agent or the Purchaser Agents may reasonably request.
Section 7.08. Reporting Requirements of the Servicer. If the Servicer
is the Originator or one of its Affiliates, the Servicer hereby agrees that,
from and after the Closing Date and until the Termination Date, it shall deliver
or cause to be delivered to the Purchasers,
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the Purchaser Agents and the Administrative Agent the financial statements,
notices, and other information at the times, to the Persons and in the manner
set forth in Annex 5.02(a).
ARTICLE VIII.
GRANT OF SECURITY INTERESTS
Section 8.01. Seller's Grant of Security Interest. The parties hereto
intend that each Purchase of Purchaser Interests to be made hereunder shall
constitute a purchase and sale of undivided percentage ownership interests in
the Transferred Receivables and not a loan. Notwithstanding the foregoing, in
addition to and not in derogation of any rights now or hereafter acquired by any
Purchaser or the Administrative Agent hereunder, the parties hereto intend that
this Agreement shall constitute a security agreement under applicable law. In
such regard and, in any event, to secure the prompt and complete payment,
performance and observance of all Seller Secured Obligations, and to induce the
Conduit Purchasers and the Committed Purchasers to enter into this Agreement and
perform the obligations required to be performed by it hereunder in accordance
with the terms and conditions thereof, the Seller hereby grants, assigns,
conveys, pledges, hypothecates and transfers to the Administrative Agent, for
the benefit of itself, the Conduit Purchasers and the Committed Purchasers, a
Lien upon and security interest in all of its right, title and interest in, to
and under, but none of its obligations arising from, the following property,
whether now owned by or owing to, or hereafter acquired by or arising in favor
of, the Seller (including under any trade names, styles or derivations of the
Seller), and regardless of where located (all of which being hereinafter
collectively referred to as the "Seller Collateral"):
(a) all Transferred Receivables;
(b) the Sale and Contribution Agreement, all Lockbox Account
Agreements, Deposit Account Agreements and all other Related Documents now or
hereafter in effect relating to the purchase, servicing or processing of
Transferred Receivables (collectively, the "Seller Assigned Agreements"),
including (i) all rights of the Seller to receive moneys due and to become due
thereunder or pursuant thereto, (ii) all rights of the Seller to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect thereto,
(iii) all claims of the Seller for damages or breach with respect thereto or for
default thereunder, (iv) the right of the Seller to amend, waive or terminate
the same and to perform and to compel performance and otherwise exercise all
remedies thereunder, and (v) all rights of the Seller in the Originator
Collateral;
(c) all of the following (collectively, the "Seller Account
Collateral"):
(i) the Lockbox Accounts, the Lockboxes, and all funds on
deposit therein and all certificates and instruments, if any, from time to
time representing or evidencing the Lockbox Accounts, the Lockboxes or such
funds,
(ii) the Deposit Accounts and all funds on deposit therein
and all certificates and instruments, if any, from time to time
representing or evidencing the Deposit Accounts or such funds;
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(iii) the Agent's Account, the Reserve Account and all funds on
deposit therein and all certificates and instruments, if any, from time to
time representing or evidencing the Agent's Account, the Reserve Account or
such funds,
(iv) all Investments from time to time of amounts in the Agent's
Account and the Reserve Account, and all certificates, instruments and
investment property, if any, from time to time representing or evidencing
such Investments,
(v) all notes, certificates of deposit and other instruments
from time to time delivered to or otherwise possessed by any Purchaser or
any assignee or agent on behalf of any Purchaser in substitution for or in
addition to any of the then existing Seller Account Collateral, and
(vi) all interest, dividends, cash, instruments, investment
property and other property from time to time received, receivable or
otherwise distributed with respect to or in exchange for any and all of the
then existing Seller Account Collateral;
(d) all other property that may from time to time hereafter be
granted and pledged by the Seller or by any Person on its behalf under this
Agreement, including any deposit with any Purchaser or the Administrative Agent
of additional funds by the Seller; and
(e) to the extent not otherwise included, all proceeds of the
foregoing and all accessions to, substitutions and replacements for, and profits
of, each of the foregoing Seller Collateral (including proceeds that constitute
property of the types described in Sections 8.01(a) through (d).
Section 8.02. Seller's Certification. The Seller hereby certifies that
(a) the benefits of the representations, warranties and covenants of the
Originator made to the Seller under the Sale and Contribution Agreement have
been assigned as part of the Seller Collateral by the Seller to the
Administrative Agent on behalf of the Purchasers hereunder; (b) the rights of
the Seller under the Sale and Contribution Agreement to require payment of a
Rejected Amount from the Originator may be enforced by the Purchasers and the
Administrative Agent; and (c) the Sale and Contribution Agreement provides that
the representations, warranties and covenants described in Sections 4.1, 4.2,
5.1, and 5.3 thereof, the indemnification and payment provisions of Article VII
thereof and the provisions of Sections 6.1(o), 8.3 and 8.5 thereof shall survive
the sale of the Purchaser Interests and the termination of the Sale and
Contribution Agreement and this Agreement. The Seller hereby acknowledges that
one or more Conduit Purchasers may have assigned to one or more Program Support
Providers under one or more Program Documents the benefits of the
representations, warranties and covenants certified in Section 8.02(a) to have
been assigned to such Conduit Purchaser. Notwithstanding any provision in this
Agreement to the contrary, the assignments and rights referred to in this
Section 8.02 that have been granted to the Purchasers, the Administrative Agent
and their respective successors and assigns shall automatically and irrevocably
be deemed to be released and reassigned to Seller upon the Termination Date.
Section 8.03. Consent to Assignment. Each of the Seller and the
Servicer acknowledges and consents to the grant by Redwood to the Collateral
Agent of a Lien upon all
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of Redwood's rights, title and interest in, to and under the Seller Collateral
and acknowledges the rights of the Collateral Agent with respect to such Lien,
and further acknowledges and consents that, upon the occurrence and during the
continuance of an Incipient Termination Event or a Termination Event prior to a
GE Capital Funding Event, the Collateral Agent shall be entitled to enforce the
provisions of the Seller Assigned Agreements and shall be entitled to all the
rights and remedies of Redwood thereunder. In addition, each of the Seller and
the Servicer hereby authorizes the Collateral Agent to rely on the
representations and warranties made by it in the Seller Assigned Agreements to
which it is a party and in any other certificates or documents furnished by it
to any party in connection therewith.
Section 8.04. Delivery of Collateral. Other than as provided in
Section 5.01(d)(ii), all certificates or instruments representing or evidencing
the Seller Collateral shall be delivered to and held by or on behalf of the
Administrative Agent and shall be in suitable form for transfer by delivery or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Administrative Agent. The
Administrative Agent shall have the right (a) at any time to exchange
certificates or instruments representing or evidencing Seller Collateral for
certificates or instruments of smaller or larger denominations and (b) at any
time in its discretion following the occurrence and during the continuation of a
Termination Event and without notice to the Seller, to transfer to or to
register in the name of the Administrative Agent or its nominee any or all of
the Seller Collateral.
Section 8.05. Seller Remains Liable. It is expressly agreed by the
Seller that, anything herein to the contrary notwithstanding, the Seller shall
remain liable under any and all of the Transferred Receivables, the Contracts
therefor, the Seller Assigned Agreements and any other agreements constituting
the Seller Collateral to which it is a party to observe and perform all the
conditions and obligations to be observed and performed by it thereunder. The
Purchasers, the Administrative Agent, the Redwood Secured Parties and the other
Program Support Providers shall not have any obligation or liability under any
such Transferred Receivables, Contracts or agreements by reason of or arising
out of this Agreement or any Program Document or the granting herein or therein
of a Lien thereon or the receipt by the Administrative Agent, Purchasers, any
Redwood Secured Party or any other Program Support Provider of any payment
relating thereto pursuant hereto or thereto. The exercise by any Purchaser or
the Administrative Agent of any of its respective rights under this Agreement
shall not release the Originator, the Seller or the Servicer from any of their
respective duties or obligations under any such Transferred Receivables,
Contracts or agreements. None of the Purchasers, the Administrative Agent, any
Redwood Secured Party or any other Program Support Provider shall be required or
obligated in any manner to perform or fulfill any of the obligations of the
Originator, the Seller or the Servicer under or pursuant to any such Transferred
Receivable, Contract or agreement, or to make any payment, or to make any
inquiry as to the nature or the sufficiency of any payment received by it or the
sufficiency of any performance by any party under any such Transferred
Receivable, Contract or agreement, or to present or file any claims, or to take
any action to collect or enforce any performance or the payment of any amounts
that may have been assigned to it or to which it may be entitled at any time or
times.
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Section 8.06. Covenants of the Seller and the Servicer Regarding the
Seller Collateral.
(a) Offices and Records. The Seller shall maintain its principal place
of business and chief executive office and the office at which it stores its
Records at the respective locations specified in Schedule 4.01(i) or, upon 30
days' prior written notice to the Administrative Agent, at such other location
in a jurisdiction where all action requested by the Administrative Agent
pursuant to Section 14.15 shall have been taken with respect to the Seller
Collateral. Each of the Seller and the Servicer shall, at its own cost and
expense, maintain adequate and complete records of the Transferred Receivables
and the Seller Collateral and, with respect to the Servicer only, all of the
Originator's Receivables, including records of any and all payments received,
credits granted and merchandise returned with respect thereto and all other
dealings therewith. Each of the Seller and the Servicer shall ▇▇▇▇ conspicuously
with a legend, in form and substance satisfactory to the Administrative Agent,
its books and records, computer tapes, computer disks and credit files
pertaining to the Seller Collateral, and its file cabinets or other storage
facilities where it maintains information pertaining thereto, to evidence this
Agreement and the assignment and Liens granted pursuant to this Article VIII and
in accordance with Section 5.01(d)(ii). If a Termination Event has occurred and
is continuing, at any time on the demand of the Administrative Agent or any
Purchaser Agent, the Seller and the Servicer shall deliver and turn over such
books and records to the Administrative Agent, such Purchaser Agent or its
representatives, as applicable. Prior to the occurrence of a Termination Event
and upon notice from the Administrative Agent or any Purchaser Agent, the Seller
and the Servicer shall permit any representative of the Administrative Agent or
such Purchaser Agent to inspect such books and records and shall provide
photocopies thereof to the Administrative Agent or such Purchaser Agent as more
specifically set forth in Section 8.06(b).
(b) Access. Each of the Seller and the Servicer shall, at its own
expense, during normal business hours, from time to time upon reasonable prior
notice (except that no notice shall be required if an Incipient Termination
Event or Termination Event has occurred and is continuing) as frequently as the
Administrative Agent or any Purchaser Agent determines to be appropriate: (i)
provide the Purchasers, the Purchaser Agents, the Administrative Agent and any
of their respective officers, employees and agents access to its properties
(including properties utilized in connection with the collection, processing or
servicing of the Transferred Receivables), facilities, advisors and employees
(including officers) and to the Seller Collateral, (ii) permit the Purchasers,
the Purchaser Agents, the Administrative Agent and any of their respective
officers, employees and agents to inspect, audit and make extracts from its
books and records, including all Records, (iii) permit the Purchasers, the
Purchaser Agents and the Administrative Agent and their respective officers,
employees and agents to inspect, review and evaluate the Transferred Receivables
and the Seller Collateral (including Transferred Receivables that consist of
chattel paper), (iv) permit the Purchasers, the Purchaser Agents and the
Administrative Agent and their respective officers, employees and agents to
discuss matters relating to the Transferred Receivables or its performance under
this Agreement or the other Related Documents or the business, operations,
properties, financial and other conditions of the Seller, the Originator or the
Servicer with any of its officers, employees, representatives or agents (in each
case, with those persons having knowledge of such matters) and with its
independent certified public accountants, (v) if an Incipient Termination Event
or a Termination Event shall have occurred and be continuing then each of the
Seller and the Servicer shall, at its
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own expense, provide such access at all times and without advance notice, and
(vi) if a Cash Management Event (other than the events specified in clauses
(e)(i) and (g) in the definition thereof) shall have occurred and be continuing,
the Originator shall provide the Purchasers, the Purchaser Agents and the
Administrative Agent with access to its suppliers and customers; provided, that
the Administrative Agent shall notify the Seller or Servicer, as the case may
be, prior to any contact with its independent certified public accountants and
shall give such Person the opportunity to participate in such discussions. Each
of the Seller and the Servicer shall make available to the Administrative Agent,
the Purchaser Agents and their respective counsel, as quickly as is possible
under the circumstances, originals or copies of all books and records, including
Records, that the Administrative Agent or any Purchaser Agent may request. Each
of the Seller and the Servicer shall deliver any document or instrument
necessary for the Administrative Agent, as the Administrative Agent may from
time to time request, to obtain records from any service bureau or other Person
that maintains records for the Seller or the Servicer, and shall maintain
duplicate records or supporting documentation on media, including computer tapes
and discs owned by the Seller or the Servicer.
(c) Communication with Accountants. Each of the Seller and the
Servicer authorizes the Purchasers, the Purchaser Agents and the Administrative
Agent to communicate directly with its independent certified public accountants
in the circumstances permitted in Section 8.06(b) and authorizes and shall
instruct those accountants and advisors to disclose and make available to the
Purchasers, the Purchaser Agents and the Administrative Agent any and all
financial statements, management letters, and other supporting financial
documents, schedules and information relating to the Seller or the Servicer
(including copies of any reports and documents required for submission in
accordance with Section 5.02) with respect to its business, financial condition
and other affairs; provided, that, the Administrative Agent, the Purchaser
Agents and the Purchasers agree not to make photocopies of any management letter
made available to them hereunder.
(d) Collection of Transferred Receivables. Except as otherwise
provided in this Section 8.06(d), the Servicer shall continue to collect or
cause to be collected, at its sole cost and expense, all amounts due or to
become due to the Seller under the Transferred Receivables, the Seller Assigned
Agreements and any other Seller Collateral. In connection therewith, the Seller
and the Servicer shall take such action as it, and from and after the occurrence
and during the continuance of a Termination Event, the Administrative Agent, may
deem necessary or desirable to enforce collection of the Transferred
Receivables, the Seller Assigned Agreements and the other Seller Collateral;
provided, that the Seller may, rather than having the Servicer commence any such
action or taking any other enforcement action, at its option, elect to pay to
the Applicable Purchaser (in accordance with its Purchaser Interests), the
Outstanding Balance of any such Transferred Receivable; provided further, that
if (i) the Administrative Agent has taken dominion and control over the Lockbox
Accounts pursuant to Section 6.01(a)(i), then the Administrative Agent may
without prior notice to the Seller or the Servicer, exercise its rights and
remedies with respect to the Lockbox Accounts and Deposit Accounts under
Sections 6.01 and 6.03, and (ii) if the Administrative Agent has taken dominion
and control over the Lockbox Accounts pursuant to Section 6.01(a)(i), (caused by
the occurrence and continuation of a Cash Management Event other than the events
specified in clauses (e)(i) and (g) in the definition thereof), then the
Administrative Agent may, without prior notice to the Seller or the Servicer,
notify any Obligor under any Transferred Receivable or obligors under the Seller
Assigned
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Agreements of the assignment of such Transferred Receivables or Seller Assigned
Agreements, as the case may be, to the Administrative Agent on behalf of the
Purchasers hereunder and direct that payments of all amounts due or to become
due to the Seller thereunder be made directly to the Administrative Agent or any
servicer, collection agent or lockbox or other account designated by the
Administrative Agent and, upon such notification and if a Termination Event has
occurred and is continuing, at the sole cost and expense of the Seller and the
Servicer, the Administrative Agent may enforce collection of any such
Transferred Receivable or the Seller Assigned Agreements and adjust, settle or
compromise the amount or payment thereof.
(e) Performance of Seller Assigned Agreements. Each of the Seller and
the Servicer shall (i) perform and observe in all material respects all the
terms and provisions of the Seller Assigned Agreements to be performed or
observed by it, maintain the Seller Assigned Agreements in full force and
effect, enforce the Seller Assigned Agreements in accordance with their terms
and take all action as may from time to time be requested by the Administrative
Agent in order to accomplish the foregoing, and (ii) upon the request of and as
directed by the Administrative Agent, make such demands and requests to any
other party to the Seller Assigned Agreements as are permitted to be made by the
Seller or the Servicer thereunder.
Section 8.07. License for Use of Software and Other Intellectual
Property. Unless expressly prohibited by the licensor thereof or any provision
of applicable law, if any, the Seller hereby grants to the Administrative Agent
on behalf of the Purchasers a license to use, without charge, the Seller's
computer programs, software, printouts and other computer materials, technical
knowledge or processes, data bases, materials, trademarks, registered
trademarks, trademark applications, service marks, registered service marks,
service ▇▇▇▇ applications, patents, patent applications, trade names, rights of
use of any name, labels fictitious names, inventions, designs, trade secrets,
goodwill, registrations, copyrights, copyright applications, permits, licenses,
franchises, customer lists, credit files, correspondence, and advertising
materials or any property of a similar nature, as it pertains to the Seller
Collateral, or any rights to any of the foregoing, in the advertising for sale,
and selling any of the Seller Collateral, or exercising of any other remedies
hereto, and the Seller agrees that the Seller's rights under all licenses and
franchise agreements shall inure to the Administrative Agent's benefit (on
behalf of the Purchasers). Except upon the occurrence and continuation of a
Termination Event, the Administrative Agent and the Purchasers agree not to use
any such license without giving the Seller notice.
ARTICLE IX.
TERMINATION EVENTS
Section 9.01. Termination Events. If any of the following events
(each, a "Termination Event") shall occur (regardless of the reason therefor):
(a) the Seller shall (i) fail to make any payment of any Seller
Secured Obligation when due and payable and the same shall remain unremedied for
two Business Days or more, (ii) fail to observe or perform any covenant or
agreement contained in Sections 5.01(e), 5.01(g), 5.03(a) and 6.01 of this
Agreement, or (iii) fail or neglect to perform, keep or observe any other
provision of this Agreement or the other Related Documents (other than any
provision
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embodied in or covered by any other clause of this Section 9.01) and the same
shall remain unremedied for two Business Days or more after written notice
thereof shall have been given by the Administrative Agent to the Seller;
(b) a default or breach shall occur under any 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 (i) 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 respect to the
Seller, is in excess of a principal amount of $25,000,000 in the aggregate, or
(ii) causes or permits any holder of such Debt or a trustee or agent to cause,
such 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;
(c) a case or proceeding shall have been commenced against any Bergen
Entity, any Significant Subsidiary, the Seller or 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) any Bergen Entity, Significant Subsidiary, the Seller or 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) any Bergen Entity, the Seller or the Servicer generally does
not pay its debts as such debts become due or admits in writing its inability
to, or is generally unable to, pay its Debts as such Debts become due or (ii)
the fair market value of the Originator's, the Servicer's or the Seller's
liabilities exceeds the fair market value of its assets;
(f) a final judgment or judgments for the payment of money in excess
of $25,000,000 in the aggregate at any time outstanding shall be rendered
against any Bergen Entity, any Affiliate of the Originator, or the Servicer and
the same shall not, within 30 days after the entry thereof, have been discharged
or execution thereof stayed or bonded pending appeal, or shall not have been
discharged prior to the expiration of any such stay;
(g) a judgment or order for the payment of money shall be rendered
against the Seller and either (i) enforcement proceedings shall have been
commenced upon any such judgment, or (ii) such judgment or order shall not have
been vacated or dismissed within 30 days after such judgment or order is
entered;
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(h) (i) any information contained in any Investment Base Certificate
is untrue or incorrect in any respect, or, any information given with respect to
Reserves in the Investment Base Certificate is not made in good faith and is not
based on reasonable estimates (which reasonability is determined as of the date
of such Investment Base Certificate), or (ii) any representation or warranty of
the Originator or the Seller herein or in any other Related Document or in any
written statement, report, financial statement or certificate (other than an
Investment Base Certificate) made or delivered by the Originator or the Seller
to any Affected Party hereto or thereto is untrue or incorrect in any material
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 adjusted in accordance
with Section 3.2 of the Sale and Contribution Agreement;
(i) any Governmental Authority (including the IRS or the PBGC) shall
file notice of a Lien on any Receivables of the Originator or which otherwise
materially adversely affects the financial condition of the Originator or the
Parent's ability to perform as Servicer hereunder and (i) the amount secured by
such Lien, as stated in such notice, is $5,000,000 or more or (ii) the amount
secured by such Lien, as stated in such notice, is less than $5,000,000 and (A)
such Lien has not been terminated, released or bonded within two (2) Business
Days after the receipt of such notice by any Bergen Entity, provided, that any
such bond shall effectively suspend such Governmental Authority's ability to
enforce or execute on such Lien within ten (10) Business Days of receipt of such
notice or (B) such Governmental Authority commences any enforcement action with
respect to, or attempts to execute on, such Lien;
(j) any Governmental Authority (including the IRS or the PBGC) shall
file notice of a Lien with regard to any of the assets of the Seller;
(k) there shall have occurred any event which materially adversely
impairs in the reasonable judgment of the Administrative Agent the ability of
the Servicer to originate Transferred Receivables of a credit quality, taken as
a whole, which are at least of the credit quality of the Transferred
Receivables, taken as a whole, in the initial Purchase;
(l) a Material Adverse Effect has occurred since the Closing Date;
(m) (i) the Originator shall fail to observe or perform any covenant
or agreement contained in Sections 6.1(g), (h) or (i) of the Sale and
Contribution Agreement, (ii) a default or breach shall occur under any provision
of Sections 7.1 or 8.6 of the Sale and Contribution Agreement and the same shall
remain unremedied for two Business Days or more after the occurrence thereof,
(iii) a default or breach shall occur under any other provision of the Sale and
Contribution Agreement and the same shall remain unremedied for five Business
Days or more after written notice thereof shall have been given by the
Administrative Agent to the Seller or (iv) the Sale and Contribution Agreement
shall for any reason cease to evidence the transfer to the Seller of the legal
and equitable title to, and ownership of, the Transferred Receivables;
(n) except as otherwise expressly provided herein, any Lockbox Account
Agreement, Deposit Account Agreement or the Sale and Contribution Agreement
shall have
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been modified, amended or terminated without the prior written consent of the
Purchasers and the Administrative Agent;
(o) an Event of Servicer Termination shall have occurred;
(p) with respect to the Transferred Receivables, (i) prior to the
Purchase of Purchaser Interests therein hereunder, the Seller shall cease to
hold valid and properly perfected title to and sole record and beneficial
ownership in such Transferred Receivables or (ii) after the Purchase of
Purchaser Interests hereunder, the Administrative Agent (on behalf of the
Purchasers) shall cease to hold either (A) valid and properly perfected title to
and sole record and beneficial ownership in such Transferred Receivables or (B)
a first priority, perfected Lien in such Transferred Receivables and the Seller
Collateral;
(q) the Parent shall fail to own and control, directly or indirectly,
100% of the outstanding voting stock of the Seller and the Originator;
(r) any of the following events shall occur with respect to any
Pension Plan:
(i) the institution of any steps by the Originator, any of its
ERISA Affiliates or any other Person to terminate a Pension Plan if, as a
result of such termination, the Originator or any ERISA Affiliate could be
required to make a contribution to such Pension Plan, or could reasonably
be expected to incur a liability or obligation to such Pension Plan, in
excess of $5,000,000 in the aggregate for all such contributions,
liabilities and obligations; or
(ii) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA;
(s) the Seller shall amend its bylaws or its certificate or articles
of incorporation without the express prior written consent of the Purchasers and
the Administrative Agent;
(t) BHI shall have received an Election Notice pursuant to Section
2.1 of the Sale and Contribution Agreement;
(u) (i) the Default Ratio shall exceed 6.75%; (ii) the Delinquency
Ratio shall exceed 3.75%; (iii) the Three Month Rolling Dilution Ratio shall
exceed 6.0%; (iv) the Receivables Collection Turnover shall exceed 20 days; or
(v) the Seller's Net Worth Percentage is less than 5.0%;
(v) any material provision of any Related Document shall for any
reason cease to be valid, binding and enforceable in accordance with its terms
(or any Bergen Entity or any party to such document or the Seller shall
challenge the enforceability of any Related Document or shall assert in writing,
or engage in any action or inaction based on any such assertion, that any
provision of any of the Related Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms);
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(w) any "Termination Event" or "Servicing Default" shall occur under
the ARFC/JPMorgan Chase Purchase Agreement;
(x) AmeriSourceBergen Drug or any of its Consolidated Subsidiaries
shall fail to pay any Debt in excess of $10,000,000 of AmerisourceBergen Drug or
any of its Consolidated Subsidiaries, as the case may be, or any interest or
premium on such Debt, in either case, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other default under any agreement or
instrument relating to any such Debt or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such agreement
or instrument if the effect of such default or event is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or a final court decision
of $10,000,000 or more shall be rendered against AmerisourceBergen Drug or any
of its Consolidated Subsidiaries and (i) such amount remains unpaid and (ii)
AmerisourceBergen Drug or the relevant Consolidated Subsidiary does not, in good
faith, contest such decision within the relevant statutory period;
(y) a case or proceeding shall have been commenced against ARFC
seeking a decree or order in respect of ARFC (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 ARFC or for any substantial part of
ARFC's assets, or (iii) ordering the winding-up or liquidation of the affairs of
ARFC;
(z) ARFC 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 ARFC or
for any substantial part of ARFC's assets, (iii) make an assignment for the
benefit of creditors, or (iv) take any corporate action in furtherance of any of
the foregoing; or
(aa) any breach by JPMorgan Chase shall have occurred and be
continuing under the Third Amendment Intercreditor Agreement;
then, and in any such event, the Administrative Agent may, by notice to the
Seller, declare the Facility Termination Date to have occurred without demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Seller; provided, that the Facility Termination Date shall automatically
occur (i) upon the occurrence of any of the Termination Events described in
Sections 9.01(c), (d), (e), (t), (y) or (z) or (ii) three days after the
occurrence of the Termination Event described in Section 9.01(a)(i) if the same
shall not have been remedied by such time, in each case without demand, protest
or any notice of any kind, all of which are hereby expressly waived by the
Seller.
Section 9.02. Events of Servicer Termination. If any of the following
events (each, an "Event of Servicer Termination") shall occur (regardless of the
reason therefor):
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(a) the Servicer shall fail or neglect to perform, keep or observe any
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 three (3) 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 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 adjusted in accordance with Section 3.2 of the Sale and Contribution
Agreement;
(c) a Termination Event shall have occurred and is continuing or this
Agreement shall have been terminated;
(d) the Seller's board of directors shall have determined that it is
in the best interests of the Seller to terminate the duties of the Servicer
hereunder and shall have given the Servicer, the Purchasers, the Purchaser
Agents and the Administrative Agent at least 30 days' written notice thereof;
(e) (i) the Servicer shall assign or purport to assign any of its
obligations hereunder or under the Sale and Contribution Agreement without the
prior written consent of the Administrative Agent and the Purchaser Agents or
(ii) the Administrative Agent shall have determined (A) that any event or
condition that materially adversely affects the ability of the Servicer to
collect the Transferred Receivables, taken as a whole, or to otherwise perform
hereunder has occurred or (B) in its reasonable judgment that a material
deterioration has taken place in the quality of servicing of Transferred
Receivables or other Receivables serviced by the Servicer that is material; or
(f) there shall have occurred any event which materially and adversely
impairs in the reasonable judgment of the Administrative Agent the ability of
the Servicer to distinguish between BH2 Designated Receivables and ARFC
Designated Receivables or to segregate collections relating to ARFC Designated
Receivables from Collections relating to BH2 Designated Receivables;
then, and in any such event, any Purchaser may, by delivery of a Servicer
Termination Notice to the Seller and the Servicer, terminate the servicing
responsibilities of the Servicer hereunder, without demand, protest or further
notice of any kind, all of which are hereby waived by the Servicer. Upon the
delivery of any such notice, all authority and power of the Servicer under this
Agreement and the Sale and Contribution Agreement shall pass to and be vested in
the Successor Servicer acting pursuant to Section 11.02; provided, that
notwithstanding anything to the contrary herein, the Servicer agrees to continue
to follow the procedures set forth in Section 7.02 with respect to Collections
on the Transferred Receivables until a Successor Servicer has assumed the
responsibilities and obligations of the Servicer in accordance with Section
11.02.
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ARTICLE X.
REMEDIES
Section 10.01. Actions Upon Termination Event. If any Termination
Event shall have occurred and be continuing and the Administrative Agent shall
have declared the Facility Termination Date to have occurred or the Facility
Termination Date shall be deemed to have occurred pursuant to Section 9.01, then
the Administrative Agent may or, at the direction of the Requisite Purchasers,
shall exercise in respect of the Seller Collateral, in addition to any and all
other rights and remedies granted to it hereunder, under any other Related
Document or under any other instrument or agreement securing, evidencing or
relating to the Seller Secured Obligations or otherwise available to it, all of
the rights and remedies of a secured party upon default under the UCC (such
rights and remedies to be cumulative and nonexclusive), and, in addition, may,
or at the direction of the Requisite Purchasers shall, take the following
actions:
(a) The Administrative Agent may, without notice to the Seller except
as required by law and at any time or from time to time, charge, offset or
otherwise apply amounts payable to the Seller from the Agent's Account, any
Lockbox Account, Deposit Account, the Reserve Account or any part of such
accounts in accordance with the priorities set forth in Sections 6.06 and 6.08
against all or any part of the Seller Secured Obligations.
(b) The Administrative Agent may, without notice except as specified
below, solicit and, with the consent of the Purchasers, accept bids for and sell
the Seller Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or any of the Purchasers', or
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. The Administrative Agent shall have the right to
conduct such sales on the Seller's premises or elsewhere and shall have the
right to use any of the Seller's premises without charge for such sales at such
time or times as the Administrative Agent deems necessary or advisable. The
Seller agrees that, to the extent notice of sale shall be required by law, at
least ten Business Days' notice to the Seller of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not be
obligated to make any sale of Seller Collateral regardless of notice of sale
having been given. The Administrative Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed for such
sale, and such sale may, without further notice, be made at the time and place
to which it was so adjourned. Every such sale shall operate to divest all right,
title, interest, claim and demand whatsoever of the Seller in and to the Seller
Collateral so sold, and shall be a perpetual bar, both at law and in equity,
against the Originator, the Seller, any Person claiming the Seller Collateral
sold through the Originator or the Seller, and their respective successors or
assigns. The Administrative Agent shall deposit the net proceeds of any such
sale in the Agent's Account and such proceeds shall be disbursed in accordance
with Section 6.06.
(c) Upon the completion of any sale under Section 10.01(b), the Seller
or the Servicer shall deliver or cause to be delivered to the purchaser or
purchasers at such sale on the date thereof, or within a reasonable time
thereafter if it shall be impracticable to make immediate delivery, all of the
Seller Collateral sold on such date, but in any event full title and right of
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possession to such property shall vest in such purchaser or purchasers upon the
completion of such sale. Nevertheless, if so requested by the Administrative
Agent or by any such purchaser, the Seller shall confirm any such sale or
transfer by executing and delivering to such purchaser all proper instruments of
conveyance and transfer and releases as may be designated in any such request.
(d) At any sale under Section 10.01(b), the Purchasers, the Purchaser
Agents, the Administrative Agent, the Redwood Secured Parties or any other
Program Support Provider may bid for and purchase the property offered for sale,
and upon compliance with the terms of sale, may hold, retain and dispose of such
property without further accountability therefor.
(e) The Administrative Agent may exercise, at the sole cost and
expense of the Seller, any and all rights and remedies of the Seller under or in
connection with the Seller Assigned Agreements or the other Seller Collateral,
including any and all rights of the Seller to demand or otherwise require
payment of any amount under, or performance of any provisions of, the Seller
Assigned Agreements.
Section 10.02. Exercise of Remedies. No failure or delay on the part
of the Administrative Agent in exercising any right, power or privilege under
this Agreement and no course of dealing between the Originator, the Seller, or
the Servicer, on the one hand, and the Administrative Agent, on the other hand,
shall operate as a waiver of such right, power or privilege, nor shall any
single or partial exercise of any right, power or privilege under this Agreement
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. The rights and remedies under
this Agreement are cumulative, may be exercised singly or concurrently, and are
not exclusive of any rights or remedies that the Administrative Agent would
otherwise have at law or in equity. No notice to or demand on any party hereto
shall entitle such party to any other or further notice or demand in similar or
other circumstances, or constitute a waiver of the right of the party providing
such notice or making such demand to any other or further action in any
circumstances without notice or demand.
Section 10.03. Power of Attorney. On the Closing Date, each of the
Seller and the Servicer shall execute and deliver a power of attorney
substantially in the form attached hereto as Exhibit 10.03 (each, a "Power of
Attorney"). The power of attorney granted pursuant to each Power of Attorney is
a power coupled with an interest and shall be irrevocable until all of the
Seller Secured Obligations are indefeasibly paid or otherwise satisfied in full.
The powers conferred on the Administrative Agent under each Power of Attorney
are solely to protect the Purchaser's Liens upon and interests in the Seller
Collateral and shall not impose any duty upon the Administrative Agent to
exercise any such powers. The Administrative Agent shall not be accountable for
any amount other than amounts that it actually receives as a result of the
exercise of such powers and none of the Administrative Agent's officers,
directors, employees, agents or representatives shall be responsible to the
Seller or the Servicer for any act or failure to act, except in respect of
damages attributable solely to their own gross negligence or willful misconduct
as finally determined by a court of competent jurisdiction.
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Section 10.04. Continuing Security Interest. This Agreement shall
create a continuing Lien in the Seller Collateral until the conditions to the
release of the Liens of the Purchasers and the Administrative Agent thereon set
forth in Section 6.08(b) have been satisfied.
ARTICLE XI.
SUCCESSOR SERVICER PROVISIONS
Section 11.01. Servicer Not to Resign. The Servicer shall not resign
from the obligations and duties hereby imposed on it except upon a determination
that (a) (i) the performance of its duties hereunder has become impermissible
under applicable law or regulation and (ii) there is no reasonable action that
the Servicer could take to make the performance of its duties hereunder become
permissible under applicable law or (b) the Servicing Fee has not been paid
within 90 days of the date due. Any such determination shall (i) with respect to
clause (a) above, be evidenced by an opinion of counsel to such effect and (ii)
with respect to clause (b) above, be evidenced by an Officer's Certificate to
such effect, in each case delivered to the Purchasers, the Purchaser Agents and
the Administrative Agent. No such resignation shall become effective until a
Successor Servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Section 11.02.
Section 11.02. Appointment of the Successor Servicer. In connection
with the termination of the Servicer's responsibilities or the resignation by
the Servicer under this Agreement pursuant to Sections 9.02 or 11.01, the
Administrative Agent shall (a) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations as Servicer (but not in any
other capacity, including specifically not the obligations of the Servicer set
forth in Section 12.02) under this Agreement (and except that the Administrative
Agent makes no representations and warranties pursuant to Section 4.02) and (b)
may at any time appoint a successor servicer to the Servicer that shall be
acceptable to the Administrative Agent and the Purchaser Agents and shall have
satisfied the Rating Agency Condition in respect thereof (and, if such
resignation is pursuant to Section 11.01(a) and no Incipient Termination Event
or Termination Event has occurred and is continuing, subject to the consent of
the Seller, not to be unreasonably withheld) and shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer under
this Agreement (the Administrative Agent, in such capacity, or such successor
servicer being referred to as the "Successor Servicer"); provided, that the
Successor Servicer shall have no responsibility for any actions of the Servicer
prior to the date of its appointment or assumption of duties as Successor
Servicer. In selecting a Successor Servicer, the Administrative Agent may obtain
bids from any potential Successor Servicer and may agree to any bid it deems
appropriate. The Successor Servicer shall accept its appointment by executing,
acknowledging and delivering to the Administrative Agent and the Purchaser
Agents an instrument in form and substance acceptable to the Administrative
Agent.
Section 11.03. Duties of the Servicer. The Servicer covenants and
agrees that, following the appointment of, or assumption of duties by, a
Successor Servicer:
(a) The Servicer shall terminate its activities as Servicer hereunder
in a manner that facilitates the transfer of servicing duties to the Successor
Servicer and is otherwise acceptable to each Purchaser and the Administrative
Agent and, without limiting the generality
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of the foregoing, shall timely deliver (i) any funds to the Administrative Agent
that were required to be remitted to the Administrative Agent for deposit in the
Agent's Account and (ii) all Servicing Records and other information with
respect to the Transferred Receivables to the Successor Servicer at a place
selected by the Successor Servicer. The Servicer shall account for all funds and
shall execute and deliver such instruments and do such other things as may be
required to vest and confirm in the Successor Servicer all rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer.
(b) The Servicer shall terminate each existing Sub-Servicing Agreement
and the Successor Servicer shall not be deemed to have assumed any of the
Servicer's interests therein or to have replaced the Servicer as a party
thereto.
Section 11.04. Effect of Termination or Resignation. Any termination
of or resignation by the Servicer hereunder shall not affect any claims that the
Seller, the Purchasers, the Purchaser Agents, or the Administrative Agent may
have against the Servicer for events or actions taken or not taken by the
Servicer arising prior to any such termination or resignation.
ARTICLE XII.
INDEMNIFICATION
Section 12.01. Indemnities by the Seller.
(a) Without limiting any other rights that the Purchasers, the
Administrative Agent, the Liquidity Agents, the Liquidity Lenders, any other
Program Support Providers, or any of their respective officers, directors,
employees, attorneys, agents or representatives (each, an "Indemnified Person")
may have hereunder or under applicable law, the Seller hereby agrees to
indemnify and hold harmless each Indemnified Person from and against any and all
Indemnified Amounts that may be claimed or asserted against or incurred by any
such Indemnified Person in connection with or arising out of the transactions
contemplated under this Agreement or under any other Related Document or any
actions or failures to act in connection therewith, including any and all
reasonable legal costs and expenses arising out of or incurred in connection
with disputes between or among any parties to any of the Related Documents;
provided, that the Seller shall not be liable for any indemnification to an
Indemnified Person to the extent that any such Indemnified Amount (x) results
solely from (i) with respect to any Indemnified Person other than the Conduit
Purchasers, such Indemnified Person's gross negligence or (ii) with respect to
any Indemnified Person, such Indemnified Person's willful misconduct, in each
case as finally determined by a court of competent jurisdiction or (y)
constitutes recourse for uncollectible or uncollected Transferred Receivables.
Without limiting the generality of the foregoing, the Seller shall pay on demand
to each Indemnified Person any and all Indemnified Amounts relating to or
resulting from:
(i) reliance on any representation or warranty made or deemed
made by the Seller (or any of its officers) under or in connection with
this Agreement or any other Related Document or on any other information
delivered by the Seller pursuant hereto or thereto that shall have been
incorrect in any material respect when made or deemed made or delivered;
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(ii) the failure by the Seller to comply with any term,
provision or covenant contained in this Agreement, any other Related
Document or any agreement executed in connection herewith or therewith, any
applicable law, rule or regulation with respect to any Transferred
Receivable or the Contract therefor, or the nonconformity of any
Transferred Receivable or the Contract therefor with any such applicable
law, rule or regulation; or
(iii) (A) the failure to vest and maintain vested in the Seller
valid and properly perfected title to and sole record and beneficial
ownership of the Receivables that constitute Transferred Receivables,
together with all Collections in respect thereof, free and clear of any
Adverse Claim, (B) the failure to vest and maintain vested in the
Purchasers valid and properly perfected title and sole record and
beneficial ownership of the Purchaser Interests, (C) the failure to
maintain or transfer to the Purchasers a first, priority, perfected Lien in
the Seller Collateral and (D) the failure to maintain or transfer to the
Administrative Agent a first priority, perfected Lien therein;
(iv) any dispute, claim, offset or defense of any Obligor
(other than its discharge in bankruptcy to the payment of any Transferred
Receivable that is the subject of a Purchase hereunder (including a defense
based on such Transferred Receivable or the Contract therefor not being a
legal, valid and binding obligation of such Obligor enforceable against it
in accordance with its terms), or any other claim resulting from the sale
of the merchandise or services giving rise to such Transferred Receivable
or the furnishing of or failure to furnish such merchandise or services or
relating to collection activities with respect to such Transferred
Receivable (if such collection activities were performed by any Bergen
Entity or any of its Affiliates acting as the Servicer), except to the
extent that such dispute, claim, offset or defense results solely from any
action or inaction on the part of any Indemnified Person;
(v) any products liability claim or other claim arising out of
or in connection with merchandise, insurance or services that is the
subject of any Contract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to Transferred
Receivables by the Seller at any time with its other funds or the funds of
any other Person;
(vii) any failure by the Seller to cause the filing of, or any
delay in filing, financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or any other
applicable laws with respect to any Transferred Receivable that is the
subject of a Purchase hereunder, whether at the time of any such Purchase
or at any subsequent time except to the extent such delay or failure is
caused solely by the Administrative Agent; or
(viii) any failure of a Bank to comply with the terms of the
applicable Lockbox Account Agreement or Deposit Account Agreement.
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(b) Any Indemnified Amounts subject to the indemnification provisions
of this Section 12.01 not paid in accordance with Article VI shall be paid by
the Seller to the Indemnified Person entitled thereto within five Business Days
following demand therefor.
Section 12.02. Indemnities by the Servicer.
(a) Without limiting any other rights that an Indemnified Person may
have hereunder or under applicable law, the Servicer hereby agrees to indemnify
and hold harmless each Indemnified Person from and against any and all
Indemnified Amounts that may be claimed or asserted against or incurred by any
such Indemnified Person in connection with or arising out of any breach by the
Servicer (solely in its capacity as Servicer) of its obligations hereunder or
under any other Related Document; provided, that the Servicer shall not be
liable for any indemnification to an Indemnified Person to the extent that any
such Indemnified Amount (x) results solely from (i) with respect to any
Indemnified Person other than the Conduit Purchaser, such Indemnified Person's
gross negligence or (ii) with respect to any Indemnified Person, such
Indemnified Person's willful misconduct, in each case as finally determined by a
court of competent jurisdiction, or (y) constitutes recourse for uncollectible
or uncollected Transferred Receivables. Without limiting the generality of the
foregoing, the Servicer shall pay on demand to each Indemnified Person any and
all Indemnified Amounts relating to or resulting from:
(i) reliance on any representation or warranty made or deemed
made by the Servicer (or any of its officers) (solely in its capacity as
Servicer) under or in connection with this Agreement or any other Related
Document or on any other information delivered by the Servicer (solely in
its capacity as Servicer) pursuant hereto or thereto that shall have been
incorrect in any material respect when made or deemed made or delivered;
(ii) the failure by the Servicer (solely in its capacity as
Servicer) to comply with any term, provision or covenant contained in this
Agreement, any other Related Document or any agreement executed in
connection herewith or therewith, any applicable law, rule or regulation
with respect to the servicing of any Transferred Receivable;
(iii) the imposition of any Adverse Claim with respect to any
Transferred Receivable or the Seller Collateral as a result of any action
taken by the Servicer hereunder; or
(iv) the commingling of Collections with respect to Transferred
Receivables by the Servicer at any time with its other funds or the funds
of any other Person.
(b) Any Indemnified Amounts subject to the indemnification provisions
of this Section 12.02 not paid in accordance with Article VI shall be paid by
the Servicer to the Indemnified Person entitled thereto within five Business
Days following demand therefor.
Section 12.03. Limitation of Damages; Indemnified Persons. NO
INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS
AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY
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SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY
TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
ARTICLE XIII.
AGENTS
Section 13.01. Authorization and Action.
(a) Each Purchaser and Purchaser Agent hereby irrevocably appoints GE
Capital as the Administrative Agent, to take such action and carry out such
functions under this Agreement as are authorized to be performed by the
Administrative Agent pursuant to the terms of this Agreement or any other
Related Document or otherwise contemplated hereby or thereby or are reasonably
incidental thereto; provided, that the duties of the Administrative Agent
hereunder shall be determined solely by the express provisions of this
Agreement, and, other than the duties set forth in Section 13.02, any permissive
right of the Administrative Agent hereunder shall not be construed as a duty.
(b) Each Purchaser hereby irrevocably appoints the respective Person
identified as the Purchaser Agent for such Purchaser's Purchaser Group on the
signature pages to this Agreement, or on the signature pages to such Purchaser's
Assignment Agreement or RPSA Supplement Agreement, as the case may be, to take
such action and carry out such functions under this Agreement as are authorized
to be performed by a Purchaser Agent pursuant to the terms of this Agreement or
any other Related Document or otherwise contemplated hereby or thereby or are
reasonably incidental thereto; provided, that the duties of a Purchaser Agent
hereunder shall be determined solely by the express provisions of this
Agreement, and any permissive rights of the Purchaser Agents hereunder shall not
be construed as a duty.
Section 13.02. Reliance.
(a) None of the Administrative Agent, any of its Affiliates or any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by any of them under or in connection
with this Agreement or the other Related Documents, except for damages solely
caused by its or their own gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction. Without limiting the generality
of the foregoing, and notwithstanding any term or provision hereof to the
contrary, the Seller, the Servicer, the Purchaser Agents, the Conduit Purchasers
and the Committed Purchasers hereby acknowledge and agree that the
Administrative Agent (i) acts as agent hereunder for the Conduit Purchasers, the
Committed Purchasers and the Purchaser Agents and has no duties or obligations
to, shall incur no liabilities or obligations to, and does not act as an agent
in any capacity for, the Seller (other than, with respect to the Administrative
Agent, under the Power of Attorney with respect to remedial actions), the
Servicer or the Originator, (ii) may consult with legal counsel, independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the
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advice of such counsel, accountants or experts, (iii) makes no representation or
warranty hereunder to any Affected Party and shall not be responsible to any
such Person for any statements, representations or warranties made in or in
connection with this Agreement or the other Related Documents, (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement, or the other
Related Documents on the part of the Seller, the Servicer, the Purchaser Agents,
the Conduit Purchasers or the Committed Purchasers or to inspect the property
(including the books and records) of the Seller, the Servicer, the Purchaser
Agents, the Conduit Purchasers or the Committed Purchasers, (v) shall not be
responsible to the Seller, the Servicer, any Purchaser Agent or any Purchaser
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the other Related Documents or any
other instrument or document furnished pursuant hereto or thereto, (vi) shall
incur no liability under or in respect of this Agreement or the other Related
Documents by acting upon any notice, consent, certificate or other instrument or
writing believed by it to be genuine and signed, sent or communicated by the
proper party or parties and (vii) shall not be bound to make any investigation
into the facts or matters stated in any notice or other communication hereunder
and may rely on the accuracy of such facts or matters. Notwithstanding the
foregoing, the Administrative Agent acknowledges that it has a duty to transfer
funds between and among the Accounts and the Agent's Account, and make
investments of funds on deposit in the Reserve Account, in accordance with
Article VI and the instructions of the Servicer.
(b) None of the Purchaser Agents, any of their respective Affiliates
or any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or the other Related Documents, except for
damages solely caused by its or their own gross negligence or willful misconduct
as finally determined by a court of competent jurisdiction. Without limiting the
generality of the foregoing, and notwithstanding any term or provision hereof to
the contrary, the Seller, the Servicer, the Administrative Agent, the Purchaser
Agents, the Conduit Purchasers and the Committed Purchasers hereby acknowledge
and agree that each Purchaser Agent acts as agent hereunder for its related
Conduit Purchasers and Committed Purchasers and has no duties or obligations to,
shall incur no liabilities or obligations to, and does not act as an agent in
any capacity for, the Seller, the Servicer, the Originator, any Purchaser other
than its Related Purchasers, any other Purchaser Agent or the Administrative
Agent.
(c) Unless otherwise specified in particular provisions of this
Agreement, each Purchaser Agent and the Administrative Agent shall in all cases
be fully justified in failing or refusing to take any action under any Related
Document unless it shall first receive such advise or concurrence of all or any
of the Purchasers (or in the case of any Purchaser Agent, the Related Purchasers
having a majority of their Group Commitment), and assurance of its
indemnification, as it deems appropriate. Unless otherwise specified in
particular provisions of this Agreement, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under and as
permitted by this Agreement in accordance with the request of the Requisite
Purchasers, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all Purchasers, the Administrative Agent and the
Purchaser Agents. The Purchasers within each Purchaser Group with a majority of
the Group Commitment of such Purchaser Group shall be entitled to request or
direct the related Purchaser Agent to take action, or refrain from taking
action, under and as permitted by this Agreement on behalf of such
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Purchasers. Such Purchaser Agent shall in all cases be fully protected in
acting, or refraining from acting, under this Agreement in accordance with a
request of such majority Purchasers, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Purchaser
Agent's Related Purchasers.
Section 13.03. Notice of Termination Events. None of the Purchaser
Agents nor the Administrative Agent shall be deemed to have knowledge or notice
of the occurrence of any Termination Event or Incipient Termination Event unless
such Person has received notice from any Purchaser, Purchaser Agent, the
Servicer or the Seller stating that a Termination Event or Incipient Termination
Event has occurred hereunder and describing such Termination Event or Incipient
Termination Event. In the event that the Administrative Agent receives a notice,
it shall promptly give notice thereof to each Purchaser Agent whereupon each
such Purchaser Agent shall promptly give notice thereof to its Related
Purchasers. In the event that a Purchaser Agent receives such a notice (other
than from the Administrative Agent), it shall promptly given notice thereof to
the Administrative Agent and to its Related Purchasers. The Administrative Agent
shall (a) to the extent so directed in writing by any Purchaser upon the
occurrence and during the continuation of a Termination Event, declare the
Facility Termination Date to have occurred, and (b) take such other action
concerning a Termination Event or Incipient Termination Event as may be directed
by the Requisite Purchasers, but until the Administrative Agent receives such
direction, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, as the Administrative Agent
deems advisable and in the best interests of the Purchasers and Purchaser
Agents.
Section 13.04. Nonreliance on Administrative Agent, Purchaser Agents,
Other Purchasers. Each Purchaser expressly acknowledges that none of the
Administrative Agent, the Purchaser Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
or any Purchaser Agent hereafter taken, including any review of the affairs of
the Seller, the Servicer or the Originator shall be deemed to constitute any
representation or warranty by the Administrative Agent or such Purchaser Agent.
Each Purchaser represents and warrants to the Administrative Agent and the
Purchaser Agents that, independently and without reliance upon the
Administrative Agent, the Purchaser Agents, or any other Purchaser and based on
such documents and information as it has deemed appropriate, it has made and
will continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, the Servicer, the Originator, and the
Receivables and its own decision to enter into this Agreement and to take, or
omit, action under any Related Document. Except for items specifically required
to be delivered hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Purchaser Agent with any information concerning
the Seller, the Servicer, the Originator or any of their respective Affiliates
that comes into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Section 13.05. Indemnification. Each Purchaser Group hereby agrees to
indemnify and hold harmless the Administrative Agent (solely in its capacity as
Administrative Agent) and its officers, directors, employees, attorneys, agents
or representatives (to the extent such amounts are not reimbursed by the Seller,
the Servicer or the Originator, and without limiting the obligations of the
Seller, the Servicer or the Originator to do so), ratably, in
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accordance with its Pro Rata Share, from and against any and all Indemnified
Amounts (including amounts payable under Section 14.04) that may be claimed or
asserted against or incurred by any such Person in connection with or arising
out of transactions contemplated under this Agreement or under any other Related
Document or any actions or failures to act in connection therewith, including
any and all reasonable legal costs and expenses arising out of or incurred in
connection with disputes between or among any parties to any of the Related
Documents; provided that the Purchaser Groups shall not be liable for any
indemnification to any such Person to the extent that any such Indemnified
Amount results solely from such Person's gross negligence or willful misconduct
as finally determined by a court of competent jurisdiction.
Section 13.06. Successor Agents. The Administrative Agent may, upon
thirty days notice to the Seller, each Purchaser and each Purchaser Agent,
resign as Administrative Agent. Such resignation shall not become effective
until a successor agent is appointed by the Majority Purchasers and has accepted
such appointment. Upon such acceptance of its appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall succeed to and become vested with all the rights and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under the Related
Documents. After any retiring Administrative Agent's resignation hereunder, the
provisions of Article XII and Article XIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative
Agent. Each Purchaser Agent and its Related Purchasers shall agree among
themselves as to the circumstances and procedures for removal, resignation and
replacement of the Purchaser Agents.
Section 13.07. GE Capital and Affiliates; Purchaser Agent and
Affiliates. GE Capital and its Affiliates and each Purchaser Agent and its
Affiliates may generally engage in any kind of business with any Obligor, the
Originator, the Seller, the Servicer, the Administrative Agent, the Conduit
Purchasers or the Committed Purchasers, the Purchaser Agents, any of their
respective Affiliates and any Person who may do business with or own securities
of such Persons or any of their respective Affiliates, all as if GE Capital were
not the Administrative Agent and each Person who is a Purchaser Agent hereunder
were not a Purchaser Agent and without the duty to account therefor to any
Obligor, the Originator, the Seller, the Servicer, the Administrative Agent, any
Purchaser Agent, any Purchaser or any other Person.
ARTICLE XIV.
MISCELLANEOUS
Section 14.01. Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other parties, or whenever any of the parties desires to
give or serve upon any other parties any communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by facsimile (with such facsimile promptly confirmed
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by delivery of a copy by personal delivery or United States Mail as otherwise
provided in this Section 14.01), (c) one Business Day after deposit with a
reputable overnight courier with all charges prepaid or (d) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party to be
notified and sent to the address or facsimile number set forth under its name on
the signature page hereof or to such other address (or facsimile number) as may
be substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to any Person
(other than any Conduit Purchaser, Committed Purchaser, Purchaser Agent or the
Administrative Agent) designated in any written notice provided hereunder to
receive copies shall in no way adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other communication.
Notwithstanding the foregoing, whenever it is provided herein that a notice is
to be given to any other party hereto by a specific time, such notice shall only
be effective if actually received by such party prior to such time, and if such
notice is received after such time or on a day other than a Business Day, such
notice shall only be effective on the immediately succeeding Business Day.
Section 14.02. Binding Effect; Assignability.
(a) General. This Agreement shall be binding upon and inure to the
benefit of the Seller, the Servicer, the Conduit Purchasers, the Committed
Purchasers, the Purchaser Agents and the Administrative Agent and their
respective successors and permitted assigns. Neither the Seller nor the Servicer
may assign, transfer, hypothecate or otherwise convey any of their respective
rights or obligations hereunder or interests herein without the express prior
written consent of the Conduit Purchasers, the Committed Purchasers, the
Purchaser Agents and the Administrative Agent and unless the Rating Agency
Condition shall have been satisfied with respect to any such assignment. Any
such purported assignment, transfer, hypothecation or other conveyance by the
Seller or the Servicer without the prior express written consent of the Conduit
Purchasers, the Committed Purchasers, the Purchaser Agents and the
Administrative Agent shall be void.
(b) Assignments by the Committed Purchasers.
(i) Any Committed Purchaser may, at any time, assign any of its
rights and obligations hereunder or interests herein to any Person pursuant
to an Assignment Agreement substantially in the form of Exhibit 14.02(b)
hereto with any changes as have been approved by the parties thereto, and,
as applicable, a supplement to the relevant Program Documents in form
satisfactory to the applicable Purchasers and the related Purchaser Agent;
provided, that (A) any assignment shall be an assignment of an identical
percentage of the assignor Committed Purchaser's Capital Investment and its
Commitment hereunder and, as applicable, under the relevant Program
Documents; (B) any assignment shall not be less than $25,000,000; (C) prior
to the occurrence of a Termination Event, such assignment is subject to the
prior written consent of the Seller as to the assignee Committed Purchaser
(which consent will not be unreasonably withheld); and (D) the assignee
Committed Purchaser has (1) in the case of the assignor Committed Purchaser
who is GECC, a short-term debt rating of at least A-1+ by S&P and P-1 by
▇▇▇▇▇'▇ and (2) in the case of all other assignor Committed Purchasers, a
short-term
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debt rating of at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇. In connection with
any Assignment Agreement entered into by a Committed Purchaser in
accordance with this Section, the Conduit Purchaser related to such
assignor Committed Purchaser shall be permitted to assign all or a portion
of its rights and obligations under this Agreement to the commercial paper
conduit related to such assignee Committed Purchaser pursuant to Section
14.02(c)(i). Any such assignee Committed Purchaser may further assign at
any time its rights and obligations hereunder or interests herein
(including any rights it may have in and to the Purchaser Interests and the
Seller Collateral and any rights it may have to exercise remedies
hereunder), in each case without the consent of the Originator or the
Servicer but subject to the requirements of this Agreement. Notwithstanding
the foregoing, the Committed Purchaser who is GE Capital may not assign its
rights and obligations hereunder or interests herein to the extent that
such assignment would reduce such Committed Purchaser's Commitment
hereunder below $200,000,000. Upon execution and delivery to the
Administrative Agent and to the related Conduit Purchaser of the Assignment
Agreement and, as applicable, to the relevant Purchaser Agent of the
supplement to the relevant Program Documents, and payment by the assignee
Committed Purchaser to the assignor Committed Purchaser of the agreed
purchase price, if any, to the extent of such assignment such assignor
Committed Purchaser shall be released from its future obligations hereunder
and, as applicable, under the relevant Program Documents, and such assignee
Committed Purchaser shall for all purposes be a Committed Purchaser, as
applicable, and shall have all the rights and obligations of such a
Purchaser hereunder to the same extent as if it were an original party
hereto and, as applicable, to the relevant Program Documents. The Seller
acknowledges and agrees that, upon any such assignment, the assignee
Committed Purchaser thereof may enforce directly, without joinder of any
Purchaser, all of the obligations of the Seller hereunder. Any Assignment
Agreement shall be an amendment hereof only to the extent necessary to
reflect the addition of the assignee Committed Purchaser as a Committed
Purchaser, any resulting adjustment of the assignor Committed Purchaser's
Commitment and Capital Investment, as applicable, and any terms specific to
such assignee Committed Purchaser or its Purchaser Group as set forth on
Schedule I to the Assignment Agreement.
(ii) If any Committed Purchaser shall (A) petition the Seller for
any amounts under Section 2.10 or (B) cease to have a short-term debt
rating of the level required by such Committed Purchaser's securitization
program (as used in this Section, a "replaced Committed Purchaser"), the
related Purchaser Agent or the Administrative Agent may designate a
replacement financial institution (as used in this Section, a "replacement
Committed Purchaser"), to which such replaced Committed Purchaser shall,
subject to its receipt of an amount equal to the aggregate outstanding
principal balance of its Capital Investment and accrued and unpaid Daily
Yield thereon (and, if applicable, its receipt of all amounts claimed under
Section 2.10) promptly assign all of its rights, obligations and Commitment
hereunder, together with all of its right, title and interest in, to, and
under the Purchaser Interest allocable to it, to the replacement Committed
Purchaser in accordance with Section 14.02(b) above.
(c) Assignments by the Conduit Purchasers.
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(i) Any Conduit Purchaser may, at any time, assign any of its
rights and obligations hereunder or interests herein to any Person pursuant
to an Assignment Agreement substantially in the form of Exhibit 14.02(b)
hereto with any changes as have been approved by the parties thereto, and,
as applicable, a supplement to the relevant Program Documents in form
satisfactory to the applicable Purchasers and their related Purchaser
Agent; provided, that (A) any assignment shall not be less than
$25,000,000; (B) prior to the occurrence of a Termination Event, such
assignment is subject to the prior written consent of the Seller as to the
assignee Conduit Purchaser (which consent will not be unreasonably
withheld); and (C) the assignee Conduit Purchaser has a short-term debt
rating of at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇. Any such assignee Conduit
Purchaser may further assign at any time its rights and obligations
hereunder or interests herein (including any rights it may have in and to
the Purchaser Interests and the Seller Collateral and any rights it may
have to exercise remedies hereunder), in each case without the consent of
the Originator or the Servicer but subject to the requirements of this
Agreement. Upon execution and delivery to the Administrative Agent and to
the related Committed Purchaser of the Assignment Agreement and, as
applicable, to the relevant Purchaser Agent of the supplement to the
relevant Program Documents, and payment by the assignee Conduit Purchaser
to the assignor Conduit Purchaser of the agreed purchase price, to the
extent of such assignment such assignor Conduit Purchaser shall be released
from its future obligations hereunder and, as applicable, under the
relevant Program Documents, and (1) the related administrative or managing
agent for such assignee Conduit Purchaser will act as the Purchaser Agent
for such Conduit Purchaser hereunder; (2) such assignee Conduit Purchaser
shall for all purposes be a Committed Purchaser, as applicable, and shall
have all the rights and obligations of such a Purchaser hereunder to the
same extent as if it were an original party hereto and, as applicable, to
the relevant Program Documents, and such assignee Conduit Purchaser's
related Program Support Providers shall have the benefit of all of the
rights and protections provided to such Program Support Providers herein
and in the other Transaction Documents; and (3) all distributions to the
assignor Conduit Purchaser hereunder with respect to the assigned portion
of the Conduit Purchaser's Purchaser Interest shall be made to the assignee
Conduit Purchaser. The Seller acknowledges and agrees that, upon any such
assignment, the assignee Conduit Purchaser thereof may enforce directly,
without joinder of any Purchaser, all of the obligations of the Seller
hereunder. Any Assignment Agreement shall be an amendment hereof only to
the extent necessary to reflect the addition of the assignee Conduit
Purchaser as a Conduit Purchaser, any resulting adjustment of the assignor
Conduit Purchaser's Capital Investment, and any terms specific to such
assignee Conduit Purchaser or its Purchaser Group as set forth on Schedule
I to the Assignment Agreement.
(ii) The Seller hereby acknowledges and consents to any
assignment, grant of security interest, or other transfers of any portion
of, or any of its beneficial interest in, the Purchaser Interest (or any
portion thereof) by a Conduit Purchaser, including, without limitation, to
its related Committed Purchaser, any Program Support Provider, any
Liquidity Lender or any collateral agent in connection with the Program
Documents. The Seller hereby specifically acknowledges that in accordance
with the provisions of the LAPA, on the day of the GE Capital Funding
Event, (A) the Committed Purchaser who is GE Capital may purchase from the
Conduit Purchaser who is Redwood
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all or any part of the Purchaser Interests sold by the Seller hereunder on
each Purchase Date prior to the GE Capital Funding Event, and (B) such
Conduit Purchaser may assign all or any part of its rights and interest in
the Seller Collateral to such Committed Purchaser. The Seller hereby
specifically consents to the assignment by the Conduit Purchaser who is
Redwood of its rights hereunder to the Collateral Agent.
Section 14.03. Termination; Survival of Seller Secured Obligations
Upon Facility Termination Date.
(a) This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until the Termination Date.
(b) Except as otherwise expressly provided herein or in any other
Related Document, no termination or cancellation (regardless of cause or
procedure) of any commitment made by any Affected Party under this Agreement
shall in any way affect or impair the obligations, duties and liabilities of the
Seller or the rights of any Affected Party relating to any unpaid portion of the
Seller Secured Obligations, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination, or
any transaction or event, the performance of which is required after the
Facility Termination Date. Except as otherwise expressly provided herein or in
any other Related Document, all undertakings, agreements, covenants, warranties
and representations of or binding upon the Seller or the Servicer, and all
rights of any Affected Party hereunder, all as contained in the Related
Documents, shall not terminate or expire, but rather shall survive any such
termination or cancellation and shall continue in full force and effect until
the Termination Date; provided, that the rights and remedies provided for herein
with respect to any breach of any representation or warranty made by the Seller
or the Servicer pursuant to Article IV, the indemnification and payment
provisions of Article XII and Sections 14.04, 14.05 and 14.06 shall be
continuing and shall survive the Termination Date.
Section 14.04. Costs, Expenses and Taxes. (a) The Seller shall
reimburse each Purchaser, each Purchaser Agent and the Administrative Agent for
all reasonable out-of-pocket expenses incurred in connection with the
negotiation and preparation of this Agreement and the other Related Documents
including the Purchasers', the Purchaser Agents' and Administrative Agent's
reasonable fees and expenses of all of special counsel, advisors, consultants
and auditors retained in connection with the transactions contemplated thereby
and advice in connection therewith; provided that the Seller's obligations to
pay certain of such costs and expenses shall be subject to the limitations set
forth in the Purchaser Group Fee Letters. The Seller shall reimburse the Conduit
Purchasers, the Committed Purchasers, the Purchaser Agents and the
Administrative Agent for all reasonable fees, costs and expenses, including the
fees, costs and expenses of counsel or other advisors (including environmental
and management consultants and appraisers) for advice, assistance, or other
representation in connection with:
(i) the forwarding to the Seller or any other Person on
behalf of the Seller by any Purchaser of any payments for Purchases made by
it hereunder;
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(ii) any amendment, modification or waiver of, consent with respect
to, or termination of this Agreement or any of the other Related Documents
or advice in connection with the administration thereof or their respective
rights hereunder or thereunder;
(iii) any Litigation, contest or dispute (whether instituted by the
Seller, the Conduit Purchasers, the Committed Purchasers, the Purchaser
Agents the Administrative Agent or any other Person as a party, witness, or
otherwise) in any way relating to the Seller Collateral, any of the Related
Documents or any other agreement to be executed or delivered in connection
herewith or therewith, including any Litigation, contest, dispute, suit,
case, proceeding or action, and any appeal or review thereof, in connection
with a case commenced by or against the Seller or any other Person that may
be obligated to the Purchasers, the Purchaser Agents or the Administrative
Agent by virtue of the Related Documents, including any such Litigation,
contest, dispute, suit, proceeding or action arising in connection with any
work-out or restructuring of the transactions contemplated hereby during
the pendency of one or more Termination Events, except to the extent that
such Litigation, contest or dispute results solely from (i) with respect to
any Indemnified Person other than the Conduit Purchasers, gross negligence
of such Indemnified Person, or (ii) willful misconduct of such Indemnified
Person, in each case as finally determined by a court of competent
jurisdiction;
(iv) any attempt to enforce any remedies of the Conduit Purchasers,
the Committed Purchasers, the Purchaser Agents or the Administrative Agent
against the Seller or any other Person that may be obligated to them by
virtue of any of the Related Documents, including any such attempt to
enforce any such remedies in the course of any work-out or restructuring of
the transactions contemplated hereby during the pendency of one or more
Termination Events;
(v) any work-out or restructuring of the transactions contemplated
hereby during the pendency of one or more Termination Events; and
(vi) following a Cash Management Event, efforts to (A) monitor the
Purchases or any of the Seller Secured Obligations and (B) evaluate,
observe or assess the Originator, the Seller or the Servicer or their
respective affairs;
(vii) efforts to verify, protect, evaluate, assess, appraise, collect,
sell, liquidate or otherwise dispose of any of the Seller Collateral
provided, that any efforts conducted as part of the audits permitted
pursuant to Section 5.01(c) shall be subject to the limitations set forth
in the Purchaser Group Fee Letters;
including all reasonable attorneys' and other professional and service
providers' fees arising from such services, including those in connection with
any appellate proceedings, and all expenses, costs, charges and other fees
reasonably incurred by such counsel and others in connection with or relating to
any of the events or actions described in this Section 14.04, all of which shall
be payable, on demand, by the Seller to the Conduit Purchasers, the Committed
Purchasers or the Administrative Agent, as applicable. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
reasonable fees, costs and
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expenses of accountants, environmental advisors, appraisers, investment bankers,
management and other consultants and paralegals; court costs and expenses;
photocopying and duplication expenses; court reporter fees, costs and expenses;
long distance telephone charges; air express charges; telegram or facsimile
charges; secretarial overtime charges; and reasonable expenses for travel,
lodging and food paid or incurred in connection with the performance of such
legal or other advisory services.
(b) In addition, the Seller shall pay on demand any and all stamp,
sales, excise and other Indemnified Taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing or recording of this
Agreement or any other Related Document, and the Seller agrees to indemnify and
save each Indemnified Person harmless from and against any and all liabilities
with respect to or resulting from any delay or failure to pay such taxes and
fees.
Section 14.05. Confidentiality.
(a) Except to the extent otherwise required by applicable law, as
required to be filed publicly with the Securities and Exchange Commission, or
unless the Administrative Agent and the Purchaser Agents shall otherwise consent
in writing, the Seller and the Servicer each agrees to maintain the
confidentiality of this Agreement (and all drafts hereof and documents ancillary
hereto) in its communications with third parties other than any Affected Party
or any Indemnified Person and otherwise and not to disclose, deliver or
otherwise make available to any third party (other than its directors, officers,
employees, accountants or counsel) the original or any copy of all or any part
of this Agreement (or any draft hereof and documents ancillary hereto) except to
an Affected Party or an Indemnified Person.
(b) The Seller and the Servicer each agrees that it shall not (and
shall not permit any of its Subsidiaries to) issue any news release or make any
public announcement pertaining to the transactions contemplated by this
Agreement and the other Related Documents without the prior written consent of
the Conduit Purchasers, the Committed Purchasers, the Purchaser Agents and the
Administrative Agent (which consent shall not be unreasonably withheld) unless
such news release or public announcement is required by law, in which case the
Seller or the Servicer, as applicable, shall consult with the Conduit
Purchasers, the Committed Purchasers, the Purchaser Agents and the
Administrative Agent prior to the issuance of such news release or public
announcement. The Seller may, however, disclose the general terms of the
transactions contemplated by this Agreement and the other Related Documents to
trade creditors, suppliers and other similarly-situated Persons so long as such
disclosure is not in the form of a news release or public announcement.
(c) Each of the Administrative Agent, the Purchaser Agents and the
Purchasers agrees to maintain the confidentiality of the Information (as defined
below), and will not use such confidential Information for any purpose or in any
matter except in connection with this Agreement, except that Information may be
disclosed (a) to (i) each Affected Party and (ii) its and each Affected Party's
and their respective Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by
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any Rating Agency, any regulatory authority (it being understood that it will to
the extent reasonably practicable provide the Company with an opportunity to
request confidential treatment from such regulatory authority), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) to the extent
required in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Related Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of, or any prospective assignee of, any of its rights or obligations
under this Agreement, (g) with the consent of the Seller or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or any other confidentiality agreement to which it is
party with the Seller or any Bergen Entity or (ii) becomes available to the
Administrative Agent, any Purchaser Agent or any Purchaser on a nonconfidential
basis from a source other than the Seller or a Bergen Entity. For the purposes
of this Section, "Information" means all information received from the Seller
and Servicer relating to the Seller, Servicer any Bergen Entity or their
businesses (including the Contracts relating to the Transferred Receivables),
other than any such information that is available to Administrative Agent, any
Purchaser Agent or any Purchaser on a nonconfidential basis prior to disclosure
by Seller or Servicer; provided that, in the case of information received from
Seller or Servicer after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Section 14.06. No Proceedings. Each of the Seller and the Servicer hereby
agrees that, from and after the Closing Date and until the date one year plus
one day following the date on which the Commercial Paper with the latest
maturity has been indefeasibly paid in full in cash, it will not, directly or
indirectly, institute or cause to be instituted against the Conduit Purchasers
or the Committed Purchasers any proceeding of the type referred to in Sections
9.01(c) and 9.01(d). This Section 14.06 shall survive the termination of this
Agreement.
Section 14.07. Reaffirmation; Complete Agreement; Modification of
Agreement. The Seller hereby reaffirms its assignment, conveyance, pledge,
hypothecation and transfer of a Lien upon and security interest in the Seller
Collateral pursuant to Section 8.01 of the Predecessor Agreement. This Agreement
and the other Related Documents constitute the complete agreement among the
parties hereto with respect to the subject matter here of and thereof, supersede
all prior agreements and understandings relating to the subject matter hereof
and thereof, and may not be modified, altered or amended except as set forth in
Section 14.08.
Section 14.08. Amendments and Waivers.
(a) No amendment, modification, termination or waiver of any provision of
this Agreement or any of the other Related Documents, or any consent to any
departure by the Seller or the Servicer therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Requisite
Purchasers, the Administrative Agent, the Seller and the Servicer; provided,
that (i) the Administrative Agent shall notify each of the Rating Agencies
GE Capital Corporation/Blue Hill II, Inc.
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65
concurrently with the execution of any amendment to any provision of this
Agreement or any of the other Related Documents, and (ii) it shall be a
condition precedent to the effectiveness of any material amendment to any
provision of this Agreement or any of the other Related Documents that the
Rating Agency Condition shall have been satisfied in respect thereof; provided,
further, that no such amendment, modification, termination or waiver shall,
without the consent of each affected Purchaser, (A) extend the date of payment
on or deposit into the Agent's Account of Collections by the Seller or the
Servicer, (B) reduce the rate or extend the payment of Daily Yield, (C) reduce
any fees, including Purchaser Group Commitment Fees, payable pursuant to the
applicable Purchaser Group Fee Letters, (D) change the amount of Capital
Investment of any Purchaser (except as contemplated by Section 2.03(c)), any
Purchaser's Pro Rata Share of the Purchaser Interests or any Committed
Purchaser's Commitment, (E) amend, modify or waive any provision of the
definition of "Requisite Purchasers" or this Section 14.08, (F) change the
definition of "Concentration Discount Amount", "Discount Reserve", "Eligible
Receivable", "Investment Base", "Purchase Discount Rate", "Reserve", "Special
Limit" or "Termination Event", (G) amend or modify any defined term (or any
defined term used directly or indirectly in any such defined term) used in
clauses (A) through (F) above in any manner that would circumvent the intention
of the restrictions set forth in such clauses, or (H) otherwise materially
affect the rights of any Purchaser or Purchaser Agent hereunder.
(b) The Seller may, with the written consent of the Administrative Agent
and each Purchaser, add additional Persons as Purchasers (either to an existing
Purchaser Group or by creating new Purchaser Groups) and, if such new Purchaser
is a Committed Purchaser, increase the Maximum Purchase Limit by the amount of
the Commitment of such new Committed Purchaser. Each new Purchaser (or Purchaser
Group) shall become a party hereto by executing and delivering to the
Administrative Agent and to the Seller an RPSA Supplement Agreement
substantially in the form of Exhibit 14.08(b) hereto with any changes as have
been approved by the parties thereto and the Administrative Agent. At such time,
the new Purchaser shall for all purposes be a Conduit Purchaser, Committed
Purchaser, and/or Purchaser Agent, as applicable, and shall have all the rights
and obligations of such a Purchaser and/or Purchaser Agent, as applicable,
hereunder to the same extent as if it were an original party hereto and, as
applicable, to the relevant Program Documents. Any RPSA Supplement Agreement
shall be an amendment hereof only to the extent necessary to reflect the
addition of the new Person as a Conduit Purchaser, Committed Purchaser and/or
Purchaser Agent, as applicable, any terms specific to such new Purchaser and/or
Purchaser Agent as set forth on Schedule I to the RPSA Supplement Agreement, and
any increase to the Maximum Purchase Limit associated with such RPSA Supplement
Agreement.
Section 14.09. No Waiver; Remedies. The failure by any Conduit Purchaser,
the any Committed Purchaser, any Purchaser Agent or the Administrative Agent, at
any time or times, to require strict performance by the Seller or the Servicer
of any provision of this Agreement or any Purchase Assignment shall not waive,
affect or diminish any right of any Purchaser or the Administrative Agent
thereafter to demand strict compliance and performance herewith or therewith.
Any suspension or waiver of any breach or default hereunder shall not suspend,
waive or affect any other breach or default whether the same is prior or
subsequent thereto and whether the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of the
Seller or the Servicer contained in this Agreement or any Purchase Assignment,
and no breach or default by the Seller or the Servicer
GE Capital Corporation/Blue Hill II, Inc.
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66
hereunder or thereunder, shall be deemed to have been suspended or waived by any
Purchaser, any Purchaser Agent or the Administrative Agent unless such waiver or
suspension is by an instrument that is executed and delivered in accordance with
Section 14.08(a) hereof and is directed to the Seller or the Servicer, as
applicable, specifying such suspension or waiver. The rights and remedies of
each Purchaser, each Purchaser Agent and the Administrative Agent under this
Agreement shall be cumulative and nonexclusive of any other rights and remedies
that any Purchaser, Purchaser Agent and the Administrative Agent may have under
any other agreement, including the other Related Documents, by operation of law
or otherwise. Recourse to the Seller Collateral shall not be required.
Section 14.10. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT AND EACH OTHER RELATED DOCUMENT (EXCEPT TO THE EXTENT
THAT ANY RELATED DOCUMENT EXPRESSLY PROVIDES TO THE CONTRARY) AND THE
OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES) EXCEPT TO THE EXTENT THAT THE PERFECTION,
EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF THE ADMINISTRATIVE AGENT IN
THE RECEIVABLES OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER RELATED DOCUMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER,
THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE ANY
PURCHASER OR THE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO REALIZE ON THE SELLER COLLATERAL OR ANY OTHER SECURITY FOR
THE SELLER SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF THE CONDUIT PURCHASERS, THE COMMITTED PURCHASERS, THE PURCHASER AGENTS
OR THE ADMINISTRATIVE AGENT. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY
GE Capital Corporation/Blue Hill II, Inc.
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Receivables Purchase and Servicing Agreement
67
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS
NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS
AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 14.11. Counterparts. This Agreement may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 14.12. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 14.13. Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
Section 14.14. Limited Recourse. The obligations of the Conduit Purchasers
and the Committed Purchasers under this Agreement and ---------------- all
Related Documents are solely the
GE Capital Corporation/Blue Hill II, Inc.
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Receivables Purchase and Servicing Agreement
68
corporate obligations of each such Purchaser. No recourse shall be had for the
payment of any amount owing in respect of Purchases or for the payment of any
fee hereunder or any other obligation or claim arising out of or based upon this
Agreement or any other Related Document against any Stockholder, employee,
officer, director, agent or incorporator of such Purchaser. Any accrued
obligations owing by the Conduit Purchasers or the Committed Purchasers under
this Agreement shall be payable by such Purchaser solely to the extent that
funds are available therefor from time to time. The Conduit Purchasers shall
not, and shall not be obligated to, pay any amount pursuant to the Related
Documents unless (a) each such Conduit Purchaser has received funds which may be
used to make such payment pursuant to the applicable Program Documents, and (b)
after giving effect to such payment, either (A) each such Conduit Purchaser
could issue Commercial Paper to refinance all outstanding Commercial Paper
(assuming such outstanding Commercial Paper matured at such time) without
violating the applicable Program Documents, or (B) all Commercial Paper is paid
in full. Any amount which any Conduit Purchaser does not pay pursuant to the
operation of the preceding sentence shall not constitute a claim (as defined in
Section 101 of the Bankruptcy Code) against or an obligation of such Conduit
Purchaser for any insufficiency unless and until such Conduit Purchaser
satisfies the provisions of such preceding sentence. This Section 14.14 shall
survive the termination of this Agreement.
Section 14.15. Further Assurances.
(a) Each of the Seller and the Servicer shall, at its sole cost and
expense, upon request of the Conduit Purchasers, the Committed Purchasers or the
Administrative Agent, promptly and duly execute and deliver any and all further
instruments and documents and take such further action that may be necessary or
desirable or that the Conduit Purchasers, the Committed Purchasers or the
Administrative Agent may request to (i) perfect, protect, preserve, continue and
maintain fully the Purchases made and the right, title and interests (including
Liens) granted to such Purchaser under this Agreement, (ii) enable the Conduit
Purchasers, the Committed Purchasers or the Administrative Agent to exercise and
enforce its rights under this Agreement or any of the other Related Documents or
(iii) otherwise carry out more effectively the provisions and purposes of this
Agreement or any other Related Document. Without limiting the generality of the
foregoing, the Seller shall, upon request of the Conduit Purchasers and the
Committed Purchasers or the Administrative Agent, (A) execute and file such
financing or continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices that may be necessary or
desirable or that the Purchasers or the Administrative Agent may request to
perfect, protect and preserve the Purchases made and the Liens granted pursuant
to this Agreement, free and clear of all Adverse Claims, (B) ▇▇▇▇, or cause the
Servicer to ▇▇▇▇, each Contract evidencing each Transferred Receivable (to the
extent related to such Transferred Receivable) with a legend, acceptable to each
Purchaser and the Administrative Agent evidencing that the Conduit Purchasers or
the Committed Purchasers, as applicable, have purchased an undivided percentage
ownership interest in all right and title thereto and interest therein as
provided herein, (C) ▇▇▇▇, or cause the Servicer to ▇▇▇▇, its master data
processing records evidencing such Transferred Receivables with such a legend
and (D) notify or cause the Servicer to notify Obligors of the sale of undivided
percentage ownership interests in the Transferred Receivables effected
hereunder.
GE Capital Corporation/Blue Hill II, Inc.
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Receivables Purchase and Servicing Agreement
69
(b) Without limiting the generality of the foregoing, the Seller hereby
authorizes the Conduit Purchaser, the Committed Purchaser and the Administrative
Agent, and each of the Conduit Purchaser and the Committed Purchaser hereby
authorizes the Administrative Agent, to file one or more financing or
continuation statements, or amendments thereto or assignments thereof, relating
to all or any part of the Transferred Receivables, including Collections with
respect thereto, or the Seller Collateral without the signature of the Seller
or, as applicable, the Conduit Purchaser or the Committed Purchaser, as
applicable, to the extent permitted by applicable law. A carbon, photographic or
other reproduction of this Agreement or of any notice or financing statement
covering the Transferred Receivables, the Seller Collateral or any part thereof
shall be sufficient as a notice or financing statement where permitted by law.
Section 14.16. Consent to Merger and Acknowledgement of Assignment. The
Administrative Agent, the Purchasers and the Seller hereby consent to (a) the
merger of ▇▇▇▇ Fillauer Medical into Bergen ▇▇▇▇▇▇▇▇, with Bergen ▇▇▇▇▇▇▇▇ being
the surviving corporation of such merger, (b) the merger of Bergen ▇▇▇▇▇▇▇▇ into
AmeriSource Corporation, with AmeriSource Corporation being the surviving
corporation of such merger and changing its name to AmerisourceBergen Drug in
connection therewith, and (c) the merger of ▇.▇. ▇▇▇▇▇ Healthcare, Inc. into
AmerisourceBergen Drug, with AmerisourceBergen Drug being the surviving
corporation of such merger. AmerisourceBergen Drug hereby assumes all
obligations and liabilities of Bergen ▇▇▇▇▇▇▇▇ as Servicer hereunder and under
the Related Documents.
Section 14.17. Effect on Predecessor Agreement; No Novation. Each of the
parties hereto agrees that, effective upon satisfaction of each of the
conditions set forth in Section 3.01 hereof:
(a) the terms and provisions of the Predecessor Agreement shall be amended,
superseded and restated in their entirety by the terms and provisions of the
Amended and Restated Agreement; provided, however, that with respect to any date
or time period occurring and ending prior to the Restatement Effective Date, the
rights and obligations of the parties to the Predecessor Agreement shall be
governed by the Predecessor Agreement and the "Related Documents" as defined
therein; and
(b) the execution and delivery of the Amended and Restated Agreement or any
of the Related Documents shall not constitute or effect, or be deemed to
constitute or effect, (i) a novation, refinancing, discharge, extinguishment or
refunding of any of the Seller Secured Obligations, or (ii) a release, waiver or
discharge of any of the rights or remedies of the Administrative Agent, the
Purchasers or the Purchaser Agents set forth in the Predecessor Agreement.
Section 14.18. Reference to Purchase Agreement. Upon the effectiveness of
this Agreement, each reference in the Purchase Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import shall mean and be a
reference to the Purchase Agreement, as amended and restated hereby, and each
reference in the Purchase Agreement, the Related Documents and any other
document, instrument or agreement executed and/or delivered in connection with
the Purchase Agreement to "the Purchase Agreement", "the Receivables Purchase
and Servicing Agreement" or words of like import shall mean and be a reference
to the
GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement
70
Purchase Agreement, as amended and restated hereby. The execution, delivery and
effectiveness of this Agreement shall not operate as a waiver of any right,
power or remedy of any Purchaser, Purchaser Agent or the Administrative Agent
under this Agreement or any other Related Document, nor constitute a waiver of
any provision contained therein.
[Signature pages follow]
GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement
71
IN WITNESS WHEREOF, the parties have caused this Receivables Purchase
and Servicing Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BLUE HILL II, INC., as the Seller
____________________________________
Name
_______________________________
Title
______________________________
Address:
-------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AMERISOURCEBERGEN DRUG CORPORATION,
as successor by merger to Bergen
▇▇▇▇▇▇▇▇ Drug Company, a California
Corporation, as the Servicer
____________________________________
Name
_______________________________
Title
______________________________
Address:
-------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Signature Page for
Amended and Restated Receivables Purchase and Servicing Agreement
REDWOOD RECEIVABLES CORPORATION, as
a Conduit Purchaser
____________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary
Address:
-------
c/o General Electric Capital
Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Committed Purchaser and a
Purchaser Agent on behalf of itself
and Redwood
____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Duly Authorized Signatory
Address:
-------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Portfolio/Bergen
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $450,000,000.00
----------
Signature Page for
Amended and Restated Receivables Purchase and Servicing Agreement
LIBERTY STREET FUNDING CORP., as a
Conduit Purchaser
____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
President
Address:
-------
c/o Scotia Capital
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE BANK OF NOVA SCOTIA, as a
Committed Purchaser and as a
Purchaser Agent on behalf of itself
and Liberty Street Funding Corp.
____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Director
Commitment: $250,000,000.00
----------
Address:
-------
c/o Scotia Capital
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Signature Page for
Amended and Restated Receivables Purchase and Servicing Agreement
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Duly Authorized Signatory
Address:
-------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Portfolio/Bergen
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGED AND AGREED:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Collateral Agent
____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Duly Authorized Signatory
Address:
-------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for
Amended and Restated Receivables Purchase and Servicing Agreement
WITH RESPECT TO THE INTERCREDITOR AGREEMENT
DATED AS OF OCTOBER 1, 2002,
ACKNOWLEDGED & CONSENTED TO BY:
JPMORGAN CHASE BANK,
in its capacity as "Chase Facility Agent"
____________________________________
Name:
Title: