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Exhibit 10.12
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
by and among
MEDCO HEALTH RECEIVABLES, LLC
as Seller
MEDCO HEALTH SOLUTIONS, INC.
as Servicer
The Persons Parties hereto as
Conduit Purchasers and Committed Purchasers
CITICORP NORTH AMERICA, INC.
and
BANK ONE, NA (MAIN OFFICE CHICAGO)
as Managing Agents
and
CITICORP NORTH AMERICA, INC.
as Administrative Agent
Dated as of September 22, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined
Terms..........................................1
SECTION 1.02 Other
Terms....................................................1
SECTION 1.03 Amendment and
Restatement......................................2
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase
Facility..............................................2
SECTION 2.02 Making Incremental
Purchases...................................3
SECTION 2.03 Receivable Interest
Computation................................4
SECTION 2.04 Application of
Collections Prior to Termination Date...........5
SECTION 2.05 Application of
Collections After Termination Date..............7
SECTION 2.06 General Settlement
Procedures..................................8
SECTION 2.07 Yield and
Fees.................................................9
SECTION 2.08 Payments and
Computations, Etc................................10
SECTION 2.09 Dividing or Combining
Receivable Interests....................10
SECTION 2.10 Breakage
Costs................................................10
SECTION 2.11
Illegality....................................................11
SECTION 2.12 Inability to Determine
Eurodollar Rate........................11
SECTION 2.13 Indemnity for Reserves
and Expenses...........................11
SECTION 2.14 Indemnity for
Taxes...........................................13
SECTION 2.15 Security
Interest.............................................15
SECTION 2.16 Optional
Liquidation..........................................16
SECTION 2.17 Optional
Repurchase...........................................17
SECTION 2.18 Termination of
Purchaser Groups...............................17
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent
to Agreement.............................18
SECTION 3.02 Conditions Precedent
to All Purchases.........................18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and
Warranties of the Seller..................19
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SECTION 4.02 Representations and
Warranties of the Servicer................22
ARTICLE V
COVENANTS
SECTION 5.01 Covenants of the
Seller.......................................23
SECTION 5.02
Audits........................................................32
SECTION 5.03 Additional Covenants
of the Servicer..........................33
ARTICLE VI
ADMINISTRATION AND COLLECTION OF RECEIVABLES
SECTION 6.01 Designation of
Servicer.......................................34
SECTION 6.02 Duties of
Servicer............................................35
SECTION 6.03
Reports.......................................................36
SECTION 6.04 Certain Rights of the
Administrative Agent....................37
SECTION 6.05 Rights and
Remedies...........................................38
SECTION 6.06 Indemnities by the
Servicer...................................39
SECTION 6.07 Administrative Agent
Account..................................40
SECTION 6.08 Servicer Replacement
Event....................................42
ARTICLE VII
TERMINATION EVENTS
SECTION 7.01 Termination
Events............................................42
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01 Authorization and
Action......................................45
SECTION 8.02 Agent's Reliance,
Etc.........................................45
SECTION 8.03 CNAI and
Affiliates...........................................46
SECTION 8.04 Indemnification of
Administrative Agent.......................46
SECTION 8.05 Delegation of
Duties..........................................46
SECTION 8.06 Action or Inaction by
Administrative Agent....................46
SECTION 8.07 Notice of Events of
Termination; Action by Administrative
Agent.........................................................47
SECTION 8.08 Non-Reliance on
Administrative Agent and Other Parties........47
SECTION 8.09 Successor
Administrative Agent................................47
ARTICLE IX
THE MANAGING AGENTS
SECTION 9.01 Authorization and
Action......................................48
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SECTION 9.02 Managing Agent's
Reliance, Etc................................48
SECTION 9.03 Managing Agent and
Affiliates.................................49
SECTION 9.04 Indemnification of
Managing Agents............................49
SECTION 9.05 Delegation of
Duties..........................................49
SECTION 9.06 Action or Inaction by
Managing Agent..........................49
SECTION 9.07 Notice of Events of
Termination...............................50
SECTION 9.08 Non-Reliance on
Managing Agent and Other Parties..............50
SECTION 9.09 Successor Managing
Agent......................................51
SECTION 9.10 Reliance on Managing
Agent....................................51
ARTICLE X
INDEMNIFICATION
SECTION 10.01 Indemnities by the
Seller.....................................51
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments,
Etc...............................................53
SECTION 11.02 Notices,
Etc..................................................54
SECTION 11.03
Assignability.................................................55
SECTION 11.04 Costs and
Expenses............................................59
SECTION 11.05 No
Proceedings................................................60
SECTION 11.06
Confidentiality...............................................60
SECTION 11.07 Amendments to Financial
Covenants.............................62
SECTION 11.08 GOVERNING
LAW.................................................62
SECTION 11.09 Execution in
Counterparts.....................................62
SECTION 11.10 Integration; Binding Effect;
Survival of Termination..........63
SECTION 11.11 Consent to
Jurisdiction.......................................63
SECTION 11.12 WAIVER OF JURY
TRIAL..........................................63
SECTION 11.13 Right of
Setoff...............................................63
SECTION 11.14 Ratable
Payments..............................................64
SECTION 11.15 Limitation of
Liability.......................................64
SECTION 11.16 Intent of the
Parties.........................................65
SCHEDULES
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SCHEDULE I -
Definitions
SCHEDULE II - Purchaser Groups
SCHEDULE III - CP Rates
SCHEDULE IV - Deposit Accounts and
Deposit Account Banks
SCHEDULE V -
Credit and
Collection Policy
SCHEDULE VI - Financial
Covenants
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SCHEDULE VII - Reviewed Contracts
SCHEDULE VIII - Accounts Payable
Deduction Amount and Rebate Deduction
Amount
SCHEDULE VII-A - Schedule of Client
Contracts Reviewed (Assumed Governing
Law)
iv
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ANNEXES
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ANNEX A-1 -
Form of
Monthly Report
ANNEX A-2 -
Form of
Weekly Report
ANNEX B-1 -
Form of
Control Agreement (Deposit Account)
ANNEX B-2 -
Form of
Control Agreement (Administrative Agent Account)
ANNEX C
- Form of
Assignment and Acceptance
ANNEX D
- Form of
Funds Transfer Letter
ANNEX E
- Form of
Joinder Agreement
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Dated as of September 22, 2003
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as
amended,
supplemented or otherwise modified and in
effect from time to time, this
"Agreement"), dated as of September 22,
2003, by and among (i) MEDCO HEALTH
RECEIVABLES, LLC, a Delaware limited
liability company, as Seller, (ii) MEDCO
HEALTH SOLUTIONS, INC., a Delaware
corporation, as initial Servicer, (iii) the
Conduit Purchasers from time to time
parties hereto, (iv) the Committed
Purchasers from time to time parties
hereto, (v) CITICORP NORTH AMERICA, INC.
and BANK ONE, NA (MAIN OFFICE CHICAGO), as
Managing Agents and (vi) CITICORP
NORTH AMERICA, INC., as Administrative
Agent.
PRELIMINARY STATEMENTS
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A. The Seller has acquired, and
may continue to acquire, Receivables from
the Originator pursuant to the Originator
Purchase Agreement by purchase or as a
contribution to the capital of the
Seller.
B. The Seller may desire to
convey, transfer and assign, from time to
time, undivided percentage interests in the
Receivables (referred to herein as
"Receivable Interests") on the terms and
conditions of this Agreement.
C. The Conduit Purchasers may,
in their sole discretion, purchase the
Receivable Interests so offered for sale
from time to time, and if a Conduit
Purchaser in any Purchaser Group elects not
to make any such purchase, the
Committed Purchasers in such Purchaser
Group have agreed that they shall make
such purchase, in each case subject to the
terms and conditions of this
Agreement.
D. The Seller, Conduit
Purchasers, the Bank Purchasers, the Managing
Agents, Administrative Agent and the
Servicer are parties the Receivables
Purchase Agreement, dated as of August 8,
2003 (as amended prior to the date
hereof, the "Existing RPA").
E. On the terms and conditions
set forth herein, the parties hereto have
agreed to amend and restate the Existing
RPA in its entirety.
Accordingly, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain
Defined Terms. Capitalized terms used and not
otherwise defined herein have the meanings
specified on Schedule I.
SECTION 1.02 Other
Terms. All accounting terms not specifically
defined herein shall be construed in
accordance with GAAP. All terms used in
Article 9 of the UCC in the State of New
York, as in effect on the date hereof
and not specifically defined herein,
are
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used herein as defined in such Article 9.
Unless otherwise expressly indicated,
all references herein to "Article,"
"Section," "Schedule" or "Annex" means
articles and sections of, and schedules and
annexes to, this Agreement. Headings
are for purposes of reference only and
shall not otherwise affect the meaning or
interpretation of any provision hereof. Any
reference to any Law shall be deemed
to be a reference to such Law as the same
may be amended or re-enacted from time
to time. Any reference to any Person
appearing in any of the Transaction
Documents shall include its successors and
permitted assigns.
SECTION 1.03 Amendment
and Restatement. Subject to the satisfaction
of the conditions precedent set forth in
Section 3.01, this Agreement amends and
restates the Existing RPA in its entirety.
This Agreement is not intended to
constitute a novation of any obligations
under the Existing RPA. Upon the
effectiveness of this Agreement (the date
of such effectiveness being the
"Effective Date"), each reference to the
Existing RPA in any other document,
instrument or agreement executed and/or
delivered in connection therewith shall
mean and be a reference to this
Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase
Facility. (a) The Seller may, at its option
from time to time prior to the Termination
Date, offer to sell and assign
Receivable Interests to the Purchasers in
each Purchaser Group at the applicable
Purchase Price specified pursuant to
Section 2.02 (each such sale and
assignment, an "Incremental Purchase"). On
the terms and conditions set forth
herein, (i) the Conduit Purchasers,
ratably, in accordance with their respective
Conduit Purchase Limits, may, in their sole
discretion, purchase the Receivable
Interests so offered for sale by the Seller
and (ii) if a Conduit Purchaser in
any Purchaser Group declines to purchase
any such Receivable Interest, or if a
Conduit Purchaser's Termination Event has
occurred and is continuing with
respect to such Conduit Purchaser, the
Committed Purchasers in such Purchaser
Group shall, ratably in accordance with
their respective Commitments, severally
and not jointly, purchase such Receivable
Interest. Each Incremental Purchase
shall be made among the Purchaser Groups
ratably in accordance with their
respective Purchaser Group Limits, except
as provided in Section 2.02(b). Under
no circumstances shall an Incremental
Purchase be made hereunder if, after
giving effect thereto, (i) the aggregate
outstanding Capital would exceed the
Purchase Limit or (ii) the Receivable
Interest Percentage would exceed the
Maximum Receivable Interest Percentage, as
determined by reference to the
information set forth in the most recent
Servicer Report delivered hereunder.
(b) Until the
Amortization Date for a Receivable Interest, the
Collections attributable to such Receivable
Interest shall be automatically
reinvested in the Pool Receivables and
Related Security and Collections with
respect thereto pursuant to (and subject to
the priority of payments set forth
in) Section 2.04 (each a "Reinvestment
Purchase") and such reinvested
Collections shall be applied pursuant to
Section 2.03 of the Originator Purchase
Agreement to pay the purchase price for
newly arising Receivables and/or to make
payments in respect of the Subordinated
Note or other expenses of the Seller.
(c) Upon five (5)
Business Days' written notice to the Administrative
Agent and each Managing Agent, the Seller
may reduce the Commitments of the
Committed Purchasers
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by an amount equal to $10,000,000 or by a
whole multiple of $1,000,000 in excess
thereof; provided that no such termination
or reduction shall be permitted if,
after giving effect thereto, the aggregate
Capital would exceed the Aggregate
Commitment. Upon any such reduction, the
Commitment of each Committed Purchaser
and the Conduit Purchase Limit of each
Conduit Purchaser shall be reduced in an
amount equal to such Committed Purchaser's
or Conduit Purchaser's ratable share
of the amount of such reduction. Once
reduced, the Commitments shall not be
subsequently reinstated without the consent
of each Committed Purchaser.
SECTION 2.02 Making
Incremental Purchases. (a) Each Incremental
Purchase hereunder shall be made on notice
delivered by the Seller to each
Managing Agent not later than 11:00 A.M.
(New York City time) on the second
Business Day prior to the date of such
Incremental Purchase. Each such notice
shall specify:
(i) the
aggregate amount (which shall not be less than
$5,000,000 and integral multiples of $100,000 in excess
thereof)
requested to be paid to the Seller for the Receivable Interests
which
are the subject of such Incremental Purchase (the "Purchase
Price");
(ii) the
allocation of such Purchase Price among the Purchaser
Groups (which shall be proportional to the respective Conduit
Purchase
Limits of the Conduit Purchaser(s) in each Purchaser Group,
unless
such purchase is to be made by the Committed Purchasers in a
particular Purchaser Group and the proceeds of such purchase are to
be
used solely to repay the Capital of the Receivable Interest of
a
Conduit Purchaser pursuant to Section 2.02(b));
(iii) the date of such
Incremental Purchase (which shall be a
Business Day); and
(iv) if the
Assignee Rate is to apply to any such Receivable
Interest, the requested duration of the initial Fixed Period for
such
Receivable Interest.
No more than two Incremental Purchases may be requested by the
Seller
during any single calendar month.
Each Conduit Purchaser shall promptly notify its Managing Agent
whether it has determined to make the
requested Incremental Purchase on the
terms specified by the Seller. If any
Conduit Purchaser has determined not to
fund all or any portion of its share of the
Purchase Price for an Incremental
Purchase, the Managing Agent for such
Conduit Purchaser shall promptly send
notice of the proposed Incremental Purchase
to the Committed Purchasers in such
Conduit Purchaser's Purchaser Group
concurrently by telecopier specifying the
date of such Incremental Purchase, the
aggregate amount of Capital of the
Receivable Interest being purchased by such
Committed Purchasers (which amount
shall be equal to the portion of the
Purchase Price that would otherwise have
been funded by the applicable Conduit
Purchaser), each such Committed
Purchaser's portion thereof (determined
ratably in accordance with their
respective Commitments), whether the Yield
for the initial Fixed Period for such
Receivable Interest is calculated based on
the Adjusted Eurodollar Rate (which
may be selected only if such notice is
given at not later than 11:00 A.M. (New
York City time) on the second Business
Day
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prior to the purchase date) or the
Alternate Base Rate, and the duration of the
Fixed Period for such Receivable Interest
(which shall be one day if the Seller
has not selected another period in
accordance with the provisions set forth in
the definition of "Fixed Period").
(b) On the date of
each such Incremental Purchase, the applicable
Conduit Purchasers and/or Committed
Purchasers shall, upon satisfaction of the
applicable conditions set forth in Article
III, make available to the Seller in
same day funds an aggregate amount equal to
the Purchase Price for the
Receivable Interests which are the subject
of such Incremental Purchase, at the
account set forth in the Funds Transfer
Letter; provided, however, if such
Incremental Purchase is being made by the
Committed Purchasers in a Purchaser
Group following the Amortization Date for a
Receivable Interest owned by a
Conduit Purchaser pursuant to clause (i)(a)
of the definition of Amortization
Date and any Capital of such Receivable
Interest is outstanding on such date of
purchase, the Seller hereby directs such
Committed Purchasers to pay the
Purchase Price for such Incremental
Purchase (to the extent of such outstanding
Capital) to the applicable Purchaser Group
Account, for application to the
reduction of the outstanding Capital of
such Receivable Interest.
(c) Effective on the
date of each Purchase, the Seller hereby sells
and assigns to the Purchaser(s)
participating in such Purchase, an undivided
percentage ownership interest, to the
extent of the Receivable Interests then
being purchased or in respect of which the
reinvestment is being made, in each
Pool Receivable then existing or thereafter
arising and in the Related Security
and Collections with respect thereto.
(d) No Conduit
Purchaser shall participate in an Incremental Purchase
under this Agreement at any time in an
amount which would exceed such Conduit
Purchaser's Conduit Purchase Limit less an
amount equal to the aggregate
outstanding Capital held by such Conduit
Purchaser.
(e) Notwithstanding
anything herein to the contrary, a Committed
Purchaser shall not be obligated to
participate in an Incremental Purchase if,
after giving effect thereto and the
application of the proceeds thereof, the
aggregate Capital held by such Committed
Purchaser would exceed an amount equal
to (i) such Committed Purchaser's
Commitment less (ii) such Committed
Purchaser's ratable share of the aggregate
outstanding Capital held by the
Conduit Purchaser(s) in such Committed
Purchaser's Purchaser Group (whether or
not any portion thereof has been assigned
by such Conduit Purchaser(s) under an
Asset Purchase Agreement). Each Committed
Purchaser's obligation shall be
several, such that the failure of any
Committed Purchaser to make available to
the Seller any funds in connection with any
Incremental Purchase shall not
relieve any other Committed Purchaser of
its obligation, if any, hereunder to
make funds available on the date of such
Incremental Purchase, but no Committed
Purchaser shall be responsible for the
failure of any other Committed Purchaser
to make funds available in connection with
any Incremental Purchase.
SECTION 2.03
Receivable Interest Computation. (a) Upon the payment of
the Purchase Price for any Incremental
Purchase hereunder, (i) each Conduit
Purchaser participating in such Purchase
shall acquire a Receivable Interest the
initial Capital of which is equal to the
portion of the Purchase Price paid by
such Conduit Purchaser and (ii) to the
extent the Committed Purchasers in any
Purchaser Group participate in such
Purchase, such Committed
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Purchasers shall acquire (ratably in
accordance with their respective
Commitments) a Receivable Interest the
initial Capital of which is equal to the
portion of the Purchase Price paid by such
Committed Purchasers.
(b) Each Receivable Interest shall be
initially computed on its date
of Purchase. Thereafter until the
Amortization Date for such Receivable
Interest, such Receivable Interest shall be
automatically recomputed (or deemed
to be recomputed) on each day other than a
Liquidation Day. Any Receivable
Interest, as computed (or deemed
recomputed) as of the day immediately preceding
the Amortization Date for such Receivable
Interest, shall thereafter remain
constant until the Termination Date occurs.
From and after the Termination Date
until the Final Payout Date, each
Receivable Interest shall be equal to a
fraction (expressed as a percentage) the
numerator of which is equal to the
Capital of such Receivable Interest as of
the Termination Date and the
denominator of which is equal to the
aggregate Capital of all Receivable
Interests as of the Termination Date.
(c) Each Purchase
shall constitute a purchase of undivided percentage
ownership interests in each and every Pool
Receivable, together with all Related
Security and Collections with respect
thereto, then existing, as well as in each
and every Pool Receivable, together with
all Related Security and Collections
with respect thereto, which arises at any
time after the date of such Purchase.
From and after the Termination Date, the
aggregate Receivable Interests of the
Purchasers shall equal 100%. On the Final
Payout Date, the Administrative Agent,
on behalf of the Conduit Purchasers and the
Committed Purchasers, shall be
deemed to have reconveyed to the Seller all
of the Conduit Purchasers' and the
Committed Purchasers' respective right,
title and interest in, to and under the
Pool Receivables and Related Security and
Collections with respect thereto, and
the Receivable Interests shall accordingly
be reduced to zero. Following the
Final Payout Date, the Administrative
Agent, on behalf of the Conduit Purchasers
and the Committed Purchasers, shall execute
and deliver to the Seller, at the
Seller's expense, such documents or
instruments as the Seller may reasonably
request to terminate the Conduit
Purchasers' and the Committed Purchasers'
respective interests in the Receivables and
Related Security and Collections
with respect thereto. Any such documents
shall be prepared by and at the expense
of the Seller.
SECTION 2.04
Application of Collections Prior to Termination Date.
(a) On each Business
Day prior to the Termination Date, the Servicer
shall, out of the Collections received
prior to such Business Day and not
previously applied pursuant to this Section
2.04 (including, if applicable, any
investment earnings received with respect
to funds on deposit in the Collection
Account), apply such Collections in the
following order and priority:
(i) set
aside on its books and hold in trust for the
Purchasers, the Managing Agents and the Administrative Agent an
amount
equal to the aggregate Yield, Fees and Servicing Fees accrued
through
such day and not previously set aside, such amount to be
allocated
among the Purchasers, the Managing Agents, the Administrative
Agent
and the Servicer ratably in accordance with the proportion of
such
amounts owing to each such Person;
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(ii) if the
Servicer Report with the most recent data delivered
hereunder indicates that the Receivable Interest Percentage
exceeds
the Maximum Receivable Interest Percentage, either (A) pay to
the
Purchasers (ratably in accordance with the outstanding Capital
of
their respective Receivable Interests) the amount necessary to
cause
the Receivable Interest Percentage to be less than or equal to
the
Maximum Receivable Interest Percentage or (B) if the
Administrative
Agent Account has been established pursuant to Section 6.07,
deposit
to the Administrative Agent Account the amount necessary to cause
the
Receivable Interest Percentage to be less than or equal to the
Maximum
Receivable Interest Percentage;
(iii) if such day is a
Liquidation Day for one or more
Receivable Interests (each a "Liquidating Receivable Interest"),
set
aside and hold in trust for the relevant Purchasers an amount equal
to
the excess, if any, of (1) the portion of the Capital allocable
to
such Liquidating Receivable Interests over (2) the Collections
previously so set aside and allocable to such Capital pursuant to
this
Section 2.04(a) and not yet distributed to the applicable
Purchasers
hereunder, such amount to be allocated to such Liquidating
Receivable
Interests ratably in proportion to the Capital of each;
provided,
however, that if
such day is a Liquidation Day by reason of the
suspension of Reinvestment Purchases pursuant to Section 2.16,
then
the amount required to be set aside pursuant to this clause
(iii)
shall not exceed the applicable Reduction Amount;
(iv) if any
Seller Obligations (other than Yield, Fees,
Servicing Fees and Capital) are then due and payable by the Seller
to
any Indemnified Party, pay to each such Indemnified Party (ratably
in
accordance with the amounts owing to each) the Seller Obligations
so
due and payable; and
(v) remit
any remaining Collections to the Seller as a
Reinvestment Purchase, for the benefit of the Purchasers then
holding
Receivable Interests, pursuant to Section 2.01(b).
(b) On each Settlement
Date for a Receivable Interest, the Servicer
shall pay to the relevant Purchaser(s) all
Yield payable to such Purchaser(s)
pursuant to Section 2.07 out of Collections
allocated or set aside for such
purpose pursuant to Section 2.04(a). On
each date on which any Fees are payable
pursuant to the Fee Letters, the Servicer
shall pay such Fees to the Persons
entitled thereto pursuant to the Fee
Letters out of Collections allocated or set
aside for such purpose pursuant to Section
2.04(a). On each Servicing Fee
Payment Date, the Servicer shall pay to
itself the accrued and unpaid Servicing
Fee out of Collections allocated or set
aside for such purpose pursuant to
Section 2.04(a).
(c) In the event any
deposit is made to the Administrative Agent
Account pursuant to Section 2.04(a)(ii)(B),
the amount of such deposit shall be
allocated among the Purchaser Groups
ratably in proportion to the outstanding
Capital of their respective Receivable
Interests. If the amount on deposit in
the Administrative Agent Account exceeds
$25,000,000, then on the next
Settlement Date applicable to any
Receivable Interest (or such earlier date as
the Servicer may specify upon not less than
three Business Days notice to each
Managing Agent),
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the Servicer shall distribute to each
Purchaser then holding a Receivable
Interest such Purchaser's allocable share
of such deposit for application to the
reduction of the Capital of such Receivable
Interest. Notwithstanding the
foregoing, if on any Business Day after
such deposit is made and prior to the
distribution of all or any portion of such
deposit pursuant to this Section
2.04(c), the Servicer delivers a Servicer
Report evidencing that the Receivable
Interest Percentage is less than the
Maximum Receivable Interest Percentage, the
Servicer may withdraw the Collections so
deposited for application in accordance
with Section 2.04(a) to the extent that,
after giving effect to such withdrawal
and application, the Receivable Interest
Percentage would not exceed the Maximum
Receivable Interest Percentage.
(d) In the event any
Collections are set aside in respect of any
Liquidating Receivable Interest pursuant to
Section 2.04(a)(iii), the Servicer
shall distribute such Collections to the
relevant Purchaser(s) on or prior to
the first Settlement Date for any such
Receivable Interest; provided, however,
that if at any time prior to such
distribution, such Receivable Interest ceases
to be a Liquidating Receivable Interest,
the Servicer need not distribute such
Collections pursuant to this Section
2.04(d) but instead may apply such
Collections in accordance with the
provisions of Section 2.04(a).
(e) Following the
occurrence and during the continuation of any
Termination Event or any Involuntary
Bankruptcy Event, and at all times during
any Rating Level 3 Period or any Rating
Level 4 Period, the Servicer shall (i)
transfer to the Collection Account all
Collections set aside or required to be
set aside pursuant to this Section 2.04 by
the Business Day following the
Servicer's receipt of such Collections,
(ii) make all distributions of such
Collections pursuant to this Section 2.04
by withdrawing such Collections from
the Collection Account on the date such
distribution is to be made and (iii) not
permit any withdrawals of such Collections
from the Collection Account except
for the purpose of distributing such
Collections in accordance with this Section
2.04. Except as provided herein, the
Servicer shall not be required to segregate
any amounts set aside by it pursuant to
this Section 2.04 from its other funds.
SECTION 2.05
Application of Collections After Termination Date. (a)
On the Termination Date, the Servicer shall
deposit to the Collection Account
all Collections held by it on such date
(including amounts previously set aside
pursuant to Section 2.04(a)). On each
Business Day thereafter until the Final
Payout Date, the Servicer shall deposit to
the Collection Account all
Collections received prior to such Business
Day that have not previously been
deposited to the Collection Account. The
Servicer shall not make any withdrawals
from the Collection Account during such
period except for the purpose of
distributing such Collections in accordance
with this Section 2.05.
(b) From and after the
Termination Date, the Servicer shall apply all
funds on deposit in the Collection Account
on any Business Day that have not
been previously applied hereunder
(including, without limitation, any investment
earnings received with respect to such
funds) in the following order of
priority:
(i) first, pay
to the Administrative Agent an amount equal to the
Seller
Obligations owing to the Administrative Agent in respect of
costs
and expenses
incurred
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in connection
with the enforcement of any Transaction Document or the
collection of
any amounts due thereunder;
(ii) second, set aside
and hold in trust for the Purchasers, the
Managing Agents
and the Administrative Agent an amount equal to the
aggregate Yield
and Fees and, if the Servicer is a Person other than Medco
or an Affiliate
thereof, Servicing Fees accrued through such day and not
previously set
aside, such amount to be allocated among the Purchasers, the
Managing Agents,
the Administrative Agent and (if applicable) the Servicer
ratably in
accordance with the proportion of such amounts owing to each
such Person;
(iii) third, set aside in the Collection Account an amount equal
to
the aggregate
Capital for all outstanding Receivable Interests (to the
extent not
previously set aside), such amount to be allocated among the
Receivable
Interests ratably in proportion to the Capital of each;
(iv) fourth, if any
Seller Obligations (other than Yield, Fees,
Servicing Fees
and Capital) are then due and payable by the Seller to any
Indemnified
Party, pay to each such Indemnified Party (ratably in
accordance with
the amounts owing to each) the Seller Obligations so due
and payable;
(v) sixth, if
the Servicer is Medco or an Affiliate thereof, set
aside in the
Collection Account the accrued and unpaid Servicing Fee not
previously set
aside; and
(vi) seventh, on the
Final Payout Date, pay to the Seller any
remaining
funds.
(c) On each Settlement
Date for a Receivable Interest from and after
the Termination Date, the Servicer shall
withdraw from the Collection Account
and pay to the relevant Purchaser all
amounts set aside in the Collection
Account in respect of the accrued Yield and
the Capital of such Receivable
Interest. On each date on which any Fees
are payable pursuant to the Fee
Letters, the Servicer shall pay such Fees
to the Persons entitled thereto
pursuant to the Fee Letters out of
Collections set aside for such purpose
pursuant to Section 2.05.
(d) On each Servicing
Fee Payment Date from and after the Termination
Date, the Servicer shall pay to the
Servicer the accrued Servicing Fee out of
Collections set aside for such purpose
pursuant to this Section 2.05.
SECTION 2.06 General
Settlement Procedures.
(a) Except as
otherwise required by applicable law or the relevant
Contract, any payment received from an
Obligor of any Receivables shall be
applied as a Collection of the Pool
Receivables of such Obligor in the order of
the age of such Receivables, starting with
the oldest such Receivable.
(b) If on any day any
Pool Receivable (or portion thereof) becomes a
Diluted Receivable, the Seller shall be
deemed to have received on such day a
Collection of such Pool Receivable in the
amount of such Diluted Receivable.
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<PAGE>
(c) If and to the
extent the Administrative Agent, any Managing Agent
or any Purchaser shall be required for any
reason to pay over to an Obligor any
amount received on its behalf hereunder,
such amount shall be deemed not to have
been so received but rather to have been
retained by the Seller and,
accordingly, the Administrative Agent, such
Managing Agent or such Purchaser, as
the case may be, shall have a claim against
the Seller for such amount, payable
when and only to the extent that any
distribution from or on behalf of such
Obligor is made in respect thereof.
(d) Within one
Business Day after the end of each Fixed Period in
respect of which Yield is computed by
reference to the CP Rate, the relevant
Managing Agent shall furnish the Seller
with an invoice setting forth the amount
of the accrued and unpaid Yield and Fees
for such Fixed Period with respect to
the Receivable Interests held by the
Conduit Purchaser(s) in such Managing
Agent's Purchaser Group.
(e) All payments
required to be made hereunder to any Purchaser shall
be made by paying such amount to the
applicable Purchaser Group Account in
accordance with Section 2.08. Upon receipt
of funds, such Managing Agent shall
pay such funds to the related Purchaser(s)
owed such funds in accordance with
the records maintained by such Managing
Agent. If a Managing Agent shall have
paid to any Purchaser any funds that (i)
must be returned for any reason
(including any Event of Bankruptcy) or (ii)
exceeds that which such Purchaser
was entitled to receive, such amount shall
be promptly repaid to such Managing
Agent by such Purchaser.
SECTION 2.07 Yield and
Fees. (a) The Servicer shall be entitled to
receive a fee (the "Servicing Fee") of
0.25% per annum (the "Servicing Fee
Rate") on the average daily Outstanding
Balance of the Pool Receivables, payable
in arrears on each Servicing Fee Payment
Date. Upon three Business Days' notice
to the Managing Agents, the Servicer (if
not an Originator, the Seller or its
designee or an Affiliate of the Seller)
may, with the prior written consent of
each Managing Agent, elect to be paid, as
such fee, another percentage per annum
on the average daily Outstanding Balance of
the Pool Receivables; provided,
however, that in no event shall the new
Servicing Fee exceed 110% of the actual
costs and expenses of such Servicer.
Notwithstanding anything herein to the
contrary, the Servicing Fee shall be
payable only from Collections pursuant to,
and subject to the priority of payments set
forth in, Sections 2.04 and 2.05. To
the extent such Collections are not
sufficient to pay the Servicing Fee in full,
none of the Seller, the Administrative
Agent, the Managing Agents or the
Purchasers shall have any liability for the
deficiency.
(b) The Seller shall
pay to the Administrative Agent and each
Managing Agent certain fees (collectively,
the "Fees") in the amounts and on the
dates set forth in (i) the fee letter
agreement dated as of the Initial Closing
Date between the Seller and the
Administrative Agent (as the same may be amended
or restated from time to time, the
"Administrative Agent Fee Letter") and (ii)
the fee letter dated as of the Initial
Closing Date among the Seller, the
Administrative Agent and the Managing
Agents (as the same may be amended or
restated from time to time, the "Purchaser
Fee Letter").
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<PAGE>
(c) On each Settlement
Date for a Receivable Interest, the Seller
shall pay to the relevant Managing Agent
all accrued and unpaid Yield with
respect to such Receivable Interest.
SECTION 2.08 Payments
and Computations, Etc. (a) All amounts to be
paid by the Seller or the Servicer to the
Administrative Agent, any Managing
Agent or any Purchaser hereunder shall be
paid no later than 12:00 noon (New
York City time) on the day when due in same
day funds to the applicable
Purchaser Group Account. All amounts to be
deposited by the Seller or the
Servicer into the Collection Account, any
Purchaser Group Account or any other
account shall be deposited no later than
12:00 noon (New York City time) on the
date when due.
(b) Each of the Seller
and the Servicer shall, to the extent
permitted by law, pay interest on any
amount not paid or deposited by it when
due hereunder, at an interest rate per
annum equal to 2.00% per annum above the
Alternate Base Rate, payable on demand.
(c) All computations
of Yield, Fees, and other amounts hereunder
shall be made on the basis of a year of 360
days for the actual number of days
(including the first but excluding the last
day) elapsed, except that
computations of interest and Yield based on
the Alternate Base Rate shall be
made on the basis of a year of 365 days (or
366, as applicable). Whenever any
payment or deposit to be made hereunder
shall be due on a day other than a
Business Day, such payment or deposit shall
be made on the next succeeding
Business Day and such extension of time
shall be included in the computation of
such payment or deposit. Any computations
by the Administrative Agent or the
applicable Managing Agent of amounts
payable by the Seller hereunder shall be
binding upon the Seller absent manifest
error.
SECTION 2.09 Dividing
or Combining Receivable Interests. Either the
Seller or (following a Termination Event or
an Incipient Termination Event) the
Administrative Agent may, upon notice to
the other party received at least three
Business Days prior to the last day of any
Fixed Period in the case of the
Seller giving notice, or up to the last day
of such Fixed Period in the case of
the Administrative Agent giving notice,
either (i) divide any Receivable
Interest into two or more Receivable
Interests having an aggregate Capital equal
to the Capital of such divided Receivable
Interest, or (ii) combine any two or
more Receivable Interests originating on
such last day or having Fixed Periods
ending on such last day into a single
Receivable Interest having a Capital equal
to the aggregate of the Capital of such
Receivable Interests; provided, however,
that no Receivable Interest owned by any
Conduit Purchaser may be combined with
a Receivable Interest owned by any other
Purchaser, and a Receivable Interest
held by the Committed Purchasers in any
Purchaser Group may not be combined with
any Receivable Interest held by Purchasers
in any other Purchaser Group.
SECTION 2.10 Breakage
Costs.
(a) The Seller shall
indemnify the Purchasers against any loss or
expense incurred by the Purchasers, either
directly or indirectly, as a result
of the failure of any Incremental Purchase
to be made for any reason on the date
specified by the Seller pursuant to Section
2.02, including any loss or expense
incurred by the Purchasers by reason of the
liquidation or reemployment of funds
acquired by the Purchasers (including funds
obtained by
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<PAGE>
issuing Promissory Notes, obtaining
deposits as loans from third parties and
reemployment of funds) to fund such
Incremental Purchase.
(b) The Seller further
agrees to pay all Liquidation Fees associated
with a reduction of the Capital at any
time.
(c) A certificate as
to any loss, expense or Liquidation Fees payable
pursuant to this Section 2.10 submitted by
any Purchaser, through its Managing
Agent, to the Seller shall be conclusive in
the absence of manifest error.
SECTION 2.11
Illegality. Notwithstanding any other provision of this
Agreement, if the adoption of or any change
in any Law or in the interpretation
or application thereof by any relevant
Official Body shall make it unlawful for
any Purchaser to make or maintain
Receivable Interests for which Yield is
calculated by reference to the Adjusted
Eurodollar Rate (each a "Eurodollar
Receivable Interest") as contemplated by
this Agreement or to obtain in the
interbank eurodollar market the funds with
which to make or maintain any such
Eurodollar Receivable Interest, (a) such
Purchaser shall promptly notify the
Administrative Agent, its Purchaser
Managing Agent and the Seller thereof, (b)
the obligation of such Purchaser to fund or
maintain Eurodollar Receivable
Interests or continue Eurodollar Receivable
Interests as such shall forthwith be
cancelled and (c) such Purchaser's
Receivable Interests then outstanding as
Eurodollar Receivable Interests, if any,
shall be converted on the last day of
the Fixed Period for such Receivable
Interests or within such earlier period as
required by Law into Receivable Interest
that accrue Yield based on the
Alternate Base Rate (each a "Base Rate
Receivable Interest").
SECTION 2.12 Inability
to Determine Eurodollar Rate. Notwithstanding
any other provision of this Agreement, if
(i) the Administrative Agent
reasonably determines that, by reason of
circumstances affecting the relevant
market, adequate and reasonable means do
not exist for ascertaining a rate for
Eurodollar Receivable Interests as provided
in the definition of Adjusted
Eurodollar Rate for any Fixed Period or
(ii) Committed Purchasers representing
at least a majority of the Aggregate
Commitment shall determine (which
determination shall be conclusive) that the
rates for the purpose of computing
the Adjusted Eurodollar Rate do not
adequately and fairly reflect the cost to
such Committed Purchasers of funding a
Eurodollar Receivable Interests that the
Seller has requested be outstanding as a
Eurodollar Receivable Interest during
such Fixed Period, the Administrative Agent
shall forthwith give telephone
notice of such determination, confirmed in
writing, to the Seller and each
Managing Agent at least two Business Days
prior to the first day of such Fixed
Period. Unless the Seller shall have
notified the applicable Managing Agent upon
receipt of such telephone notice that it
wishes to rescind or modify its request
regarding such Eurodollar Receivable
Interest, any Receivable Interests that
were requested to be funded as Eurodollar
Receivable Interests shall be Base
Rate Receivable Interests and any
Receivable Interests that were requested to be
converted into or continued as Eurodollar
Receivable Interests shall be
converted into Base Rate Receivable
Interests. Until any such notice has been
withdrawn by the Administrative Agent, no
further Receivable Interests shall be
funded as, continued as, or converted into,
Eurodollar Receivable Interests.
SECTION 2.13 Indemnity
for Reserves and Expenses. (a) If the adoption
of or any change in any Law or in the
interpretation or application thereof or
compliance by any
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<PAGE>
Indemnified Party with any request or
directive (whether or not having the force
of law) from any central bank or other
Official Body made subsequent to the date
hereof (other than any such change that
relates to Taxes, which are governed by
Section 2.14):
(i) does or
shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement
against assets held by, or deposits or other liabilities in or for
the
account of, advances or loans or purchases by, or other credit
extended by, or any other acquisition of funds by, any office of
such
Indemnified Party which are not otherwise covered by the adjustment
to
the Eurodollar Rate for the Eurodollar Rate Reserve Percentage
as
contemplated by the definition of "Adjusted Eurodollar Rate";
or
(ii) does or shall
impose on such Indemnified Party any other
condition affecting this Agreement or any Receivable Interest
or
participation therein;
and the result of any of the foregoing
shall be to increase the cost to such
Indemnified Party of making or maintaining
Receivable Interests (or of
maintaining its obligation to make any such
Receivable Interest) or to reduce
any amount received or receivable by such
Indemnified Party hereunder, then, in
any such case, the Seller shall promptly
pay such Indemnified Party, upon demand
from such Indemnified Party, any additional
amounts necessary to compensate such
Indemnified Party for such additional costs
or reduction suffered which such
Indemnified Party reasonably deems to be
material as determined by such
Indemnified Party with respect to its
Receivable Interests. A certificate as to
any additional amounts payable pursuant to
this subsection submitted by such
Indemnified Party, through its Managing
Agent, to the Seller setting forth, in
reasonable detail, the basis for and the
calculation thereof, shall be
conclusive in the absence of manifest
error.
(b) If any Indemnified
Party shall have determined that the
adoption of any applicable Law or bank
regulatory guideline regarding capital
adequacy or any change therein, or any
change in the interpretation or
administration thereof by any Official
Body, or any request or directive
regarding capital adequacy (in the case of
any bank regulatory guideline,
whether or not having the force of law) of
any such Official Body, has or would
have the effect of reducing the rate of
return on capital of such Indemnified
Party (or its parent) as a consequence of
such Indemnified Party's obligations
hereunder or with respect hereto or
otherwise as a consequence of the
transactions contemplated hereby to a level
below that which such Indemnified
Party (or its parent) could have achieved
but for such adoption, change, request
or directive (taking into consideration its
policies with respect to capital
adequacy) by an amount deemed by such
Indemnified Party to be material, then
from time to time, within fifteen days
after demand by such Indemnified Party
through its Managing Agent, the Seller
shall pay to such Managing Agent, for the
benefit of such Indemnified Party, such
additional amount or amounts as will
compensate such Indemnified Party (or its
parent) for such reduction. A
certificate as to any additional amounts
payable pursuant to this subsection
submitted by such Indemnified Party,
through its Managing Agent, to the Seller
setting forth, in reasonable detail, the
basis for and the calculation thereof,
shall be conclusive in the absence of
manifest error.
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<PAGE>
(c) Failure or delay
on the part of any Indemnified Party to demand
compensation pursuant to this Section 2.13
shall not constitute a waiver of such
Indemnified Party's right to demand such
compensation; provided, however, that
the Seller shall not be required to
compensate an Indemnified Party pursuant to
this Section 2.13 for any increased costs
or reductions incurred more than 180
days prior to the date that such
Indemnified Party notifies the Seller of the
change, event or circumstance giving rise
to such increased costs or reductions
and of such Lender's or the Issuing Bank's
intention to claim compensation
therefor; provided, further, that, if the
change giving rise to such increased
costs or reductions is retroactive, then
the 180-day period referred to above
shall be extended to include the period of
retroactive effect thereof.
SECTION 2.14 Indemnity
for Taxes. (a) Any and all payments and
deposits required to be made hereunder or
under any other Transaction Document
by the Servicer or the Seller shall be made
free and clear of and without
deduction for any and all present or future
taxes, levies, imposts, deductions,
charges or withholdings, and all
liabilities with respect thereto, excluding net
income, profits or branch profits taxes
that are imposed by the United States
and franchise, profits, branch profits and
net income taxes that are imposed on
an Indemnified Party by the state or
foreign jurisdiction under the laws of
which such Indemnified Party is organized
or in which it is a citizen, resident
or domiciliary, or the jurisdiction in
which any office making or participating
in a purchase hereunder is located, or in
each case any political subdivision
thereof (all such non-excluded taxes,
levies, imposts, deductions, charges,
withholdings and liabilities being
hereinafter referred to as "Taxes"). If the
Seller or the Servicer shall be required by
law to deduct any Taxes from or in
respect of any sum payable hereunder to any
Indemnified Party, (i) the Seller
shall make an additional payment to such
Indemnified Party, in an amount
sufficient so that, after making all
required deductions (including deductions
applicable to additional sums payable under
this Section 2.14), such Indemnified
Party receives an amount equal to the sum
it would have received had no such
deductions been made, (ii) the Seller or
the Servicer, as the case may be, shall
make such deductions and (iii) the Seller
or the Servicer, as the case may be,
shall pay the full amount deducted to the
relevant taxation authority or other
authority in accordance with applicable
law.
(b) In addition, the
Seller agrees to pay any present or future stamp
or other documentary taxes or any other
excise or property taxes, charges or
similar levies which arise from any payment
made hereunder or under any other
Transaction Document or from the execution,
delivery or registration of this
Agreement or any other Transaction Document
(hereinafter referred to as "Other
Taxes"); provided that the Indemnified
Party shall notify Seller prior to the
Initial Closing Date (or, if later, the
date such Indemnified Party became a
party to this Agreement) that such Other
Taxes imposed by (i) a foreign
jurisdiction under the laws of which an
Indemnified Party is organized or in
which it is a citizen, resident or
domiciliary, or (ii) a foreign jurisdiction
in which any office making or participating
in a purchase hereunder is located,
(including, in each case, any political
subdivision thereof), will be due and
owing to the extent that such Indemnified
Party has knowledge of the same prior
to the Initial Closing Date.
(c) The Seller will
indemnify each Indemnified Party for the full
amount of Taxes or Other Taxes (including,
without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on
amounts payable under this Section
2.14) paid by such Indemnified Party and
any liability (including penalties,
interest and expenses) arising therefrom or
with respect thereto
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whether or not such Taxes or Other Taxes
were correctly or legally asserted.
This indemnification shall be made within
thirty days from the date the
Indemnified Party makes written demand
therefor (and a copy of such demand shall
be delivered to the Administrative Agent
and the Managing Agent for such
Indemnified Party's Group). A certificate
as to the amount of such
indemnification submitted to the Seller,
the Administrative Agent and the
Managing Agent for such Indemnified Party's
Group by such Indemnified Party,
setting forth, in reasonable detail, the
basis for and the calculation thereof,
shall be conclusive and binding for all
purposes absent manifest error.
(d) Each Purchaser or
Participant who is organized outside the United
States (each, a "Non-U.S. Person") shall,
prior to the date hereof (or, in the
case of any Person who becomes a Purchaser
or a Participant after the date
hereof, prior to the date on which it so
becomes a Purchaser or a Participant),
(x) deliver to the Seller and the
Administrative Agent such properly completed
and duly executed certificates, documents
or other evidence, as required by the
IRC or Treasury regulations issued pursuant
thereto, including Internal Revenue
Service Form W-8BEN or Form W-8ECI and any
other certificate or statement of
exemption required to establish that such
payment is (i) not subject to
withholding under the IRC because such
payment is effectively connected with the
conduct by such Indemnified Party of a
trade or business in the United States or
(ii) totally exempt from United States tax
under a provision of an applicable
tax treaty and (y) upon request of the
Seller or the Administrative Agent, and
to the extent it may do so under applicable
law, furnish any other government
forms which are necessary or required under
an applicable tax treaty or
otherwise by law to reduce or eliminate any
withholding tax; provided, however,
that in the event that a Non-U.S. Person is
classified as other than a
corporation for U.S. federal income tax
purposes, such Non-U.S. Person agrees to
provide any other form certificate or
statement of exemption necessary to fully
establish such Non-U.S. Person's (and, if
applicable, such Non-U.S. Person's
beneficial owners') entitlement to a
complete exemption from withholding of U.S.
taxes on all amounts to be received by such
Non-U.S. Person (or, if applicable,
such Non-U.S. Person's beneficial owners')
pursuant to this Agreement and the
other Transaction Documents. Each such
Purchaser that changes its funding office
shall promptly notify the Seller and the
Administrative Agent of such change
and, upon written request from the Seller
or the Administrative Agent, shall
deliver any new certificates, documents or
other evidence required pursuant to
the preceding sentence prior to the
immediately following due date of any
payment by the Seller hereunder. Unless the
Seller and the Administrative Agent
have received forms or other documents
satisfactory to them indicating that
payments hereunder are not subject to
United States withholding tax,
notwithstanding paragraph (a), the Seller
or the Administrative Agent shall
withhold taxes from such payments at the
applicable statutory rate in the case
of payments to or for any Indemnified Party
organized under the laws of a
jurisdiction outside the United States, and
the applicable provisions of
paragraph (g) below shall apply to such
Purchaser.
(e) Further, each
Non-U.S. Person agrees (i) to deliver to the Seller
and the Administrative Agent, and if
applicable, the assigning Purchaser (or, in
the case of a Participant, to the Purchaser
from which the related participation
shall have been transferred) two further
duly completed and signed copies of any
forms required to be delivered pursuant to
Section 2.14(d), or successor and
related applicable forms, on or before the
date that any such form expires or
becomes obsolete and promptly after the
occurrence of any event requiring a
change from the most recent form(s)
previously delivered by it to the Seller and
Administrative Agent,
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and, if applicable, the assigning Purchaser
(or, in the case of a Participant,
to the Purchaser from which the related
participation shall have been
transferred) in accordance with applicable
U.S. laws and regulations and (ii) to
notify promptly the Seller and the
Administrative Agent, and, if applicable, the
assigning Purchaser (or, in the case of a
Participant, the Purchaser from which
the related participation shall have been
transferred) if it is no longer able
to deliver, or if it is required to
withdraw or cancel, any form or statement
previously delivered by it.
(f) Each Purchaser or
Participant that is not a Non-U.S. Person shall
deliver to the Seller and the
Administrative Agent and, if applicable, the
assigning Purchaser (or, in the case of a
Participant, to the Purchaser from
which the related participation shall have
been transferred) two duly completed
copies of United States Internal Revenue
Service Form W-9 (or applicable
successor form) unless it establishes to
the reasonable satisfaction of the
Seller that it is otherwise eligible for an
exemption from backup withholding
tax or other applicable withholding tax.
Each such Purchaser or Participant
shall deliver to the Seller and the
Administrative Agent and, if applicable, the
assigning Purchaser (or, in the case of a
Participant, to the Purchaser from
which the related participation shall have
been transferred) two further
properly completed and duly executed forms
and statements (or applicable
successor forms) at or before the time any
such form or statement becomes
obsolete.
(g) The Seller shall
not be required to pay any amounts to any
Purchaser in respect of Taxes and Other
Taxes pursuant to paragraphs (a), (b)
and (c) above if the obligation to pay such
amounts would not have arisen but
for a failure by such Purchaser to comply
with the provisions of paragraphs (b),
(d), (e) and (f) above unless such
Purchaser is unable to comply with paragraphs
(b), (d), (e) and (f) because of (i) a
change in applicable law, regulation or
official interpretation thereof or (ii) an
amendment, modification or revocation
of any applicable tax treaty or a change in
official position regarding the
application or interpretation thereof, in
each case after the date hereof (or,
in the case of any Person who became a
Purchaser after the date hereof, after
the date on which it so became a
Purchaser).
(h) If the
Administrative Agent or any Purchaser or Participant
determines, in its sole discretion, that it
has received a refund in respect of
taxes paid or indemnified by the Seller, it
shall promptly pay such refund to
the Seller, but only to the extent of
amounts paid or indemnified by the Seller
with respect to Taxes, provided, however,
that the Seller agrees to promptly
return such refund to the Administrative
Agent or the applicable Purchaser or
Participant, as the case may be, if it
receives notice from the applicable
Purchaser or Participant that such person
is required to repay such refund, plus
any penalties, interest or other charges
imposed by the relevant governmental
authority. This Section shall not be
construed to require the Administrative
Agent or any Purchaser or Participant to
make available its tax returns (or any
other information relating to its taxes
which it deems confidential) to the
Seller or any other Person.
SECTION 2.15 Security
Interest. As security for the performance by
the Seller of all the terms, covenants and
agreements on the part of the Seller
(whether as Seller or otherwise) to be
performed under this Agreement or any
other Transaction Document, including the
punctual payment when due of all
Seller Obligations, the Seller hereby
assigns to the Administrative Agent for
its benefit and the ratable benefit of the
other Indemnified Parties, and
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hereby grants to the Administrative Agent
for its benefit and the ratable
benefit of the other Indemnified Parties, a
security interest in, all of the
Seller's right, title and interest in and
to:
(a) all Receivables,
whether now owned and existing or hereafter
acquired or
arising, together with all Related Security and Collections
with respect
thereto;
(b) all Contracts,
whether now owned or existing or hereafter
acquired or
arising, including, without limitation, with respect to each
Contract (i) all
rights of the Originator to receive moneys due or to
become due under
or pursuant to such Contract (whether or not earned by
performance),
(ii) all security interests and property subject thereto from
time to time
purporting to secure payment of monies due or to become due
under or
pursuant to such Contract, (iii) all rights of the Originator
to
receive proceeds
of any insurance, indemnity, warranty or guaranty with
respect to such
Contract, (iv) claims of the Originator for damages arising
out of or for
breach of or default under such Contract, and (v) the right
of the
Originator to compel performance and otherwise exercise all
remedies
thereunder;
(c) the Deposit
Accounts and the Collection Account, including,
without
limitation, (i) all funds and other evidences of payment held
therein and all
certificates and instruments, if any, from time to time
representing or
evidencing any of such accounts or any funds and other
evidences of
payment held therein, (ii) all investment property and other
financial assets
held in, or acquired with funds from, such accounts and
all certificates
and instruments from time to time representing or
evidencing such
investment property and financial assets, (iii) all notes,
certificates of
deposit and other instruments from time to time hereafter
delivered or
transferred to, or otherwise possessed by, the Administrative
Agent in
substitution for any of the then existing accounts and (iv) all
interest,
dividends, cash, instruments, financial assets, investment
property and
other property from time to time received, receivable or
otherwise
distributed in respect of or in exchange for any and all of
such
accounts;
(d) all other assets
of the Seller, whether now owned and existing or
hereafter
acquired or arising, including, without limitation, all
accounts,
chattel paper,
goods, instruments, investment property, deposit accounts
and general
intangibles (as those terms are defined in the UCC as in effect
on the date
hereof in the State of New York), in which the Seller has any
interest;
and
(e) to the extent not
included in the foregoing, all Proceeds of any
and all of the
foregoing.
SECTION 2.16 Optional
Liquidation. The Seller may at any time direct
that Reinvestment Purchases cease for the
Receivable Interests of all
Purchasers. Any such direction shall be
made by giving the Administrative Agent
and the Servicer at least two Business
Days' prior written (including telecopy
or other facsimile communication) notice
(each a "Reduction Notice") specifying
the date on which such Reinvestment
Purchases shall cease and, if desired, when
such Reinvestment Purchases shall
re-commence, identified as when the aggregate
outstanding Capital is reduced by a
specified amount (the "Reduction Amount").
If the Seller does not so specify the date
on which Reinvestment Purchases shall
re-commence, it
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may cause Reinvestment Purchases to
re-commence at any time before the
Termination Date, subject to the terms and
conditions set forth herein, by
notifying the Administrative Agent and the
Servicer in writing (including by
telecopy or other facsimile communication)
at least one Business Day before the
date on which it desires such Reinvestment
Purchases to re-commence.
SECTION 2.17 Optional
Repurchase. The Seller may at any time at its
option elect to repurchase all or any
portion of the Receivable Interests, such
repurchase to be made ratably among the
Purchasers then holding Receivable
Interests in proportion to the Capital of
each. Any such repurchase shall be
made on not less than three (3) Business
Days' prior written notice (each a
"Repurchase Notice") specifying the date on
which such repurchase shall occur
(the "Repurchase Date") and the aggregate
Capital of the Receivable Interest to
be repurchased (the "Repurchase Amount").
On the Repurchase Date, the Seller
shall pay the Repurchase Amount to the
Purchasers ratably in accordance with the
outstanding Capital of their respective
Receivable Interests.
SECTION 2.18
Termination of Purchaser Groups. If any Indemnified
Party in a Purchaser Group makes a claim
for payment pursuant to Section 2.13
then the Seller may, at its option, take
either of the actions specified below.
(i) The
Seller may remove such Purchaser Group and terminate
the Commitments of the Committed Purchasers in such Purchaser Group
by
paying to the Managing Agent for such Purchaser Group an amount
(the
"Payout Amount") equal to the sum of (i) the aggregate Capital held
by
the Purchasers in such Purchaser Group, (ii) all Yield accrued and
to
accrue thereon through the last day of the applicable Fixed
Period(s)
to which such Capital has been allocated, (iii) all accrued and
unpaid
Fees owing to the members of such Purchaser Group and (iv) all
other
Seller Obligations owing to the members of such Purchaser Group
under
the Transaction Documents accrued through the date of such
payment.
Any such removal and termination shall be made upon not less than
five
(5) Business Days notice delivered by the Seller to the
applicable
Managing Agent and the Administrative Agent. The Payout Amount for
any
Purchaser Group shall be calculated by the relevant Managing Agent
and
notified to the Seller, which calculation shall be conclusive
and
binding absent manifest error. Upon such removal and termination,
(x)
the members of such Purchaser Group shall cease to be parties to
this
Agreement and the Commitments and Conduit Purchase Limits of
the
Purchasers in such Purchaser Group shall be reduced to zero and
(y)
the Purchase Limit will be reduced by an amount equal to the
Commitments
(determined immediately prior to such termination) of the
Committed Purchasers in such Purchaser Group.
(ii) The Seller
may declare the Scheduled Commitment
Termination Date to have occurred for all Purchasers in such
Purchaser
Group. Any such declaration shall be made upon not less than five
(5)
Business Days notice delivered by the Seller to the applicable
Managing Agent and the Administrative Agent. Upon the effectiveness
of
such declaration, (w) the Conduit Purchase Limit(s) and
Purchaser
Group Limit of such Purchaser Group shall be deemed to have
been
reduced to zero and Purchasers in such Purchaser Group shall have
no
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further right or obligation to make any Purchases hereunder,
(x)
Amortization Date shall be deemed to have occurred for all
Receivable
Interests held by the Purchasers in such Purchaser Group, (y)
the
Capital allocable to such Receivable Interests shall be reduced out
of
Collections available for such purpose pursuant to Section 2.04
or
2.05, as applicable and (z) on each date on which such Capital is
so
reduced the Purchase Limit shall be deemed to be reduced by a
corresponding amount. Once the Capital of such Receivable
Interests
has been reduced to zero and the members of such Purchaser Group
shall
have received payment in full of all accrued Yield, Fees and
other
Seller Obligations owing to them, the members of such Purchaser
Group
shall cease to be parties to this Agreement.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01
Conditions Precedent to Agreement. The effectiveness of
this Agreement is subject to the conditions
precedent that (i) all Fees required
to have been paid on or prior to the date
hereof pursuant to the Fee Letters
shall have been paid in full and (ii) the
Administrative Agent and each Managing
Agent shall have received on or before such
date, each (unless otherwise
indicated) dated such date, in form and
substance satisfactory to the
Administrative Agent and each Managing
Agent:
(a) A copy of this
Agreement, duly executed and delivered by each of
the parties hereto;
(b) A certificate of
the Secretary or Assistant Secretary of each
Transaction Party certifying the names and
true signatures of the officers of
such Transaction Party authorized to sign
the Transaction Documents to which it
is a party; and
(c) Such other
documents, instruments, certificates and opinions as
the Administrative Agent or any Managing
Agent shall reasonably request.
SECTION 3.02
Conditions Precedent to All Purchases. Each Purchase
(including the initial Incremental Purchase
and each Reinvestment Purchase)
hereunder shall be subject to the further
conditions precedent that (a) the
Servicer shall have delivered to the
Administrative Agent and each Managing
Agent all Servicer Reports required to be
delivered hereunder, each duly
completed and containing information
covering the most recently ended reporting
period for which information is required
pursuant to Section 6.03 and (b) on the
date of such Purchase the following
statements shall be true (and acceptance of
the proceeds of such Purchase shall be
deemed a representation and warranty by
the Seller and the Servicer (each as to
itself) that such statements are then
true):
(i) The
representations and warranties contained in Sections
4.01 and 4.02 of this Agreement and Section 4.01 of the
Originator
Purchase Agreement are true and correct in all material
respects
(except that, to the extent any such representation or warranty
is
qualified by materiality or Material Adverse Effect,
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such representation or warranty must be true and correct in all
respects, subject only to the materiality or Material Adverse
Effect
qualification set forth therein) on and as of the date of such
Purchase as though made on and as of such date, and
(ii) No event
has occurred and is continuing, or would result
from such Purchase, that constitutes a Termination Event or an
Incipient Termination Event, and
(iii) In the case of
any Purchase by a Conduit Purchaser, the
applicable Managing Agent shall not have given the Seller notice
(with
a copy to the Administrative Agent) that such Conduit Purchaser
has
terminated the Reinvestment Purchases hereunder (unless such
notice
has been revoked by such Managing Agent), and
(iv) Medco shall
have sold or contributed to the Seller,
pursuant to the Originator Purchase Agreement, all outstanding
Receivables as of such date; and
(c) The Administrative
Agent and each Managing Agent shall have
received such other approvals, opinions or
documents as it may reasonably
request for purposes of confirming
compliance with the foregoing conditions.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES
SECTION 4.01
Representations and Warranties of the Seller. The Seller
hereby represents and warrants as follows
as of the date hereof and as of the
date of each Purchase hereunder:
(a) The Seller is a
limited liability company duly formed, validly
existing and in good standing under the
laws of Delaware. The Seller is duly
qualified to do business, and is in good
standing, in every other jurisdiction
where the nature of its business requires
it to be so qualified, unless the
failure to so qualify would not reasonably
be expected to have a Material
Adverse Effect.
(b) The execution,
delivery and performance by the Seller of the
Transaction Documents, including the
Seller's use of the proceeds of Purchases,
(i) are within the Seller's limited
liability company powers, (ii) have been
duly authorized by all necessary limited
liability company action, (iii) do not
contravene (1) the Seller's certificate of
formation or limited liability
company agreement, (2) any law, rule or
regulation applicable to the Seller, (3)
any contractual restriction binding on or
affecting the Seller or its property
or (4) any order, writ, judgment, award,
injunction or decree binding on or
affecting the Seller or its property, and
(iv) do not result in or require the
creation of any Adverse Claim upon or with
respect to any of its properties
(except as created pursuant to this
Agreement). Each of the Transaction
Documents has been duly executed and
delivered by the Seller.
(c) No authorization
or approval or other action by, and no notice to
or filing with, any Official Body is
required for the due execution, delivery
and performance by the Seller
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of the Transaction Documents to which it is
a party or any other document to be
delivered thereunder, except for the filing
of UCC financing statements referred
to in Section 3.01.
(d) Each of the
Transaction Documents to which the Seller is a party
constitutes the legal, valid and binding
obligation of the Seller enforceable
against the Seller in accordance with its
terms, except as such enforceability
may be limited by bankruptcy, insolvency,
reorganization or other similar laws
affecting the enforcement of creditors'
rights generally and by general
principles of equity, regardless of whether
such enforceability is considered in
a proceeding in equity or at law.
(e) The opening pro
forma balance sheet of the Seller as of June 30,
2003, giving effect to the initial
Incremental Purchase to be made under this
Agreement, a copy of which has been
furnished to the Administrative Agent and
each Managing Agent, fairly presents the
financial condition of the Seller as of
such date, in accordance with GAAP. Since
its formation no change, occurrence or
development has occurred (including,
without limitation, with respect to any
commenced or threatened material litigation
or proceeding) that has had or could
reasonably be expected to have a Material
Adverse Effect.
(f) There is no
pending or (to the best knowledge of the Seller)
threatened action or proceeding affecting
the Seller before any Official Body.
The Seller is not in default in any
material respect of any order of any
Official Body.
(g) No proceeds of any
Purchase will be used for a purpose that
violates or would be inconsistent with,
Regulation T, U or X promulgated by the
Board of Governors of the Federal Reserve
System from time to time.
(h) Each Receivable
treated as or represented to be a Pool Receivable
is owned by the Seller free and clear of
any Adverse Claim (other than Adverse
Claims created hereunder). The Purchasers
have acquired a valid and perfected
first priority security interest in each
Pool Receivable now existing or
hereafter arising and in the Related
Security and Collections with respect
thereto, in each case free and clear of any
Adverse Claim (other than Adverse
Claims created hereunder). No effective
financing statement or other instrument
similar in effect is filed in any recording
office listing the Seller as debtor,
covering any asset of the Seller except
such as may be filed in favor of the
Administrative Agent in accordance with
this Agreement. No effective financing
statement or other instrument similar in
effect, is filed in any recording
office listing the Originator as debtor,
covering any Receivable, Related
Security or Collections except such as may
be filed in favor of the Seller and
assigned to the Administrative Agent in
accordance with this Agreement. Prior to
giving effect to any transfer under the
Originator Purchase Agreement, all
Receivables were payable to the Originator
as principal for its own account. The
Originator has no obligation (whether
pursuant to any contract, any requirement
of Law or otherwise) to remit any
Collections on the Receivables to any
Pharmaceutical Plan or to any other Person,
other than to the Sellers and the
Purchasers as provided in the Originator
Purchase Agreement and this Agreement.
(i) Each Servicer
Report (if prepared by any Transaction Party or one
of their respective Affiliates, or to the
extent that information contained
therein is supplied by any Transaction
Party or an Affiliate), information,
exhibit, financial statement, document,
book,
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<PAGE>
record or report furnished or to be
furnished in writing at any time (whether
before, on or after the date of this
Agreement) by or on behalf of any
Transaction Party to the Administrative
Agent, any Managing Agent or any
Purchaser in connection with this Agreement
is or will be accurate in all
material respects as of its date or (except
as otherwise disclosed to the
Administrative Agent, such Managing Agent
or such Purchaser, as the case may be,
at such time) as of the date so furnished,
and no such Servicer Report,
information, exhibit, financial statement,
document, book, record or report
contains or will contain any untrue
statement of a material fact or omits or
will omit to state a material fact
necessary in order to make the statements
contained therein, in the light of the
circumstances under which they were made,
not misleading.
(j) The principal
place of business and chief executive office of the
Seller and the office where the Seller
keeps its records concerning the
Receivables are located at the address or
addresses referred to in Section
5.01(b).
(k) The names and
addresses of all the Deposit Account Banks together
with the account numbers of the Deposit
Accounts at such Deposit Account Banks
are as specified in Schedule IV hereto, as
such Schedule IV may be updated from
time to time pursuant to Section
5.01(g).
(l) Since the date of
its formation, the Seller has not used any
company name, tradename or
doing-business-as name other than the name in which
it has executed this Agreement. The
Seller's Federal Employer Identification
Number is 83-08665.
(m) The Seller was
formed on July 10, 2003 and the Seller did not
engage in any business activities prior to
the date of this Agreement. The
Seller has no Subsidiaries. Medco directly
owns 100% of the membership interests
of the Seller, free and clear of any
Adverse Claims.
(n) The Seller is not,
and is not controlled by, an "investment
company" within the meaning of the
Investment Company Act of 1940, as amended,
or is exempt from all provisions of such
Act.
(o) The Seller is
Solvent.
(p) With respect to
each Receivable treated as or represented to be a
Pool Receivable, the Seller (i) received
such Receivable as a contribution to
the capital of the Seller by the Originator
or (ii) purchased such Receivable
from the Originator in exchange for payment
(made by the Seller to the
Originator in accordance with the
provisions of the Originator Purchase
Agreement) of cash, an addition to the
principal amount of the Subordinated
Note, or a combination thereof in an amount
which constitutes fair consideration
and reasonably equivalent value. No such
sale or contribution was made for or on
account of an antecedent debt owed by the
Originator to the Seller and no such
sale or capital contribution is or may be
voidable or subject to avoidance under
any section of the United States Bankruptcy
Code.
(q) Each Receivable
included in the calculation of the Net
Receivables Pool Balance on any date shall
be an Eligible Receivable as of such
date.
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(r) The Receivable
Interest Percentage does not exceed the Maximum
Receivable Interest Percentage.
(s) No event has
occurred and is continuing and no condition exists
which constitutes a Termination Event or
Incipient Termination Event.
SECTION 4.02
Representations and Warranties of the Servicer. Medco,
in its capacity as Servicer, hereby
represents and warrants as follows as of the
date hereof and as of the date of each
Purchase hereunder:
(a) The Servicer is a
corporation duly incorporated, validly existing
and in good standing under the laws of
Delaware, and is duly qualified to do
business, and is in good standing, in every
jurisdiction where the nature of its
business requires it to be so qualified,
unless the failure to so qualify would
not reasonably be expected to have a
Material Adverse Effect.
(b) The execution,
delivery and performance by the Servicer of this
Agreement and any 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, (iii) do not contravene
(1) the Servicer's certificate of
incorporation or by-laws, (2) any Law
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, except, in the case of each of
sub-clauses (2) through (4) of this clause
(iii), to the extent that such
contravention would not be reasonably
expected to have a Material Adverse
Effect, and (iv) do not result in or
require the creation of any Adverse Claim
upon or with respect to any of its
properties. This Agreement has been duly
executed and delivered by the Servicer.
(c) No authorization
or approval or other action by, and no notice to
or filing with, any governmental authority
or regulatory body is required for
the due execution, delivery and performance
by the Servicer of this Agreement or
any other Transaction Document to which it
is a party.
(d) This Agreement
constitutes the legal, valid and binding
obligation of the Servicer enforceable
against the Servicer in accordance with
its terms.
(e) (i) The Servicer has heretofore
furnished to the Purchasers its
consolidated balance sheet and statements of income,
stockholders'
equity and cash flows (i) for the fiscal years ending, and at,
December 29, 2001 and December 28, 2002, and (ii) as of and for
the
fiscal quarter and the portion of the fiscal year ended March
29,
2003. The financial statements described in clause (i) of this
Section
4.02(e) were reported on by PricewaterhouseCoopers LLP for such
fiscal
years ending, and at, December 29, 2001 and December 28 2002, and
in
clause (ii) of this Section 4.02(e) were certified by the
Servicer's
chief financial officer. Such financial statements present fairly,
in
all material respects, the financial position and results of
operations and cash flows of the Servicer and its consolidated
Subsidiaries as of such dates and for such periods in conformity
with
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<PAGE>
GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause
(ii)
above of this Section 4.02(e). The Servicer has heretofore also
furnished to the Purchasers its unaudited pro forma condensed
consolidated statement of income, for its fiscal year ended
December
28, 2002, and for its fiscal quarter ended March 29, 2003 and
its
unaudited pro forma condensed consolidated balance sheet at March
29,
2003. Such pro forma financial statements comply, in all
material
respects, with the requirements of Article XI of Regulation S-X of
the
SEC.
(ii) Since December 28, 2002, there has been no change,
occurrence or development that has had or could reasonably be
expected
to have a Material Adverse Effect.
(f) There are no
actions, suits or proceedings by or before any
Official Body pending against or, to the
knowledge of the Executive Officers,
threatened against or affecting the
Servicer or any of its Subsidiaries that (i)
would reasonably be expected to be
adversely determined, and (ii) if so
determined either (x) would reasonably be
expected, individually or in the
aggregate, to result in a Material Adverse
Effect or (y) seek to enjoin, unwind
or otherwise materially and adversely
affect the transactions contemplated by
the Transaction Documents.
(g) All Obligors have
been instructed to remit all their payments in
respect of Receivables directly to a
Deposit Account with respect to which a
duly executed Control Agreement is in full
force and effect.
(h) On the date of
each Purchase hereunder (and after giving effect
thereto) the Receivable Interest Percentage
does not exceed the Maximum
Receivable Interest Percentage.
(i) No event has
occurred and is continuing and no condition exists
which constitutes a Termination Event or
Incipient Termination Event.
(j) All of the
representations and warranties of Medco made pursuant
to the Originator Purchase Agreement are
true and correct.
ARTICLE V
COVENANTS
SECTION 5.01 Covenants
of the Seller. Until the Final Payout Date:
(a) Compliance with
Laws, Etc. The Seller will comply in all respects
with all applicable Laws and preserve and
maintain its limited liability company
existence, rights, franchises,
qualifications, and privileges except to the
extent that the failure so to comply with
such Laws or the failure so to
preserve and maintain such rights,
franchises, qualifications, and privileges
would not reasonably be expected to have a
Material Adverse Effect.
(b) Offices, Records
and Books of Account. The Seller will keep its
principal place of business and chief
executive office and the office where it
keeps its records concerning
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the Receivables at (i) the address of the
Seller specified in Section 11.02 as
of the date of this Agreement or (ii) upon
30 days' prior written notice to each
Managing Agent, at any other locations in
jurisdictions where all actions
reasonably requested by any Managing Agent
to protect and perfect the interests
of the Administrative Agent and the
Purchasers in the Receivables and the other
assets referred to in Section 2.15 have
been taken and completed. The Seller
also will maintain and implement
administrative and operating procedures
(including, without limitation, an ability
to recreate records evidencing
Receivables and related Contracts in the
event of the destruction of the
originals thereof), and keep and maintain
all documents, books, records and
other information reasonably necessary or
advisable for the collection of all
Receivables (including, without limitation,
records adequate to permit the daily
identification of each Receivable and all
Collections of and adjustments to each
existing Receivable).
(c) Performance and
Compliance with Contracts and Credit and
Collection Policy. The Seller will, at its
expense, (i) timely and fully perform
and comply in all material respects with
all provisions, covenants and other
promises required to be observed by it
under the Contracts related to the
Receivables and (ii) timely and fully
comply in all material respects with the
Credit and Collection Policy in regard to
each Receivable and the related
Contracts.
(d) Sales, Liens, Etc.
The Seller will not sell, assign (by operation
of law or otherwise) or otherwise dispose
of, or create or suffer to exist any
Adverse Claim (except for Adverse Claims
created hereunder) upon or with respect
to, any Receivable, Related Security, or
Collections, or upon or with respect to
any Deposit Account, the Collection Account
or any other asset of the Seller, or
assign any right to receive income in
respect thereof.
(e) Extension or
Amendment of Receivables and Contracts. Except as
provided in Section 6.02(c), the Seller
will not, and will not permit the
Originator to, extend, amend or otherwise
modify the terms of any Receivable.
(f) Change in Business
or Credit and Collection Policy. The Seller
will not make any change in the character
of its business or in the Credit and
Collection Policy, except for any such
change in a Credit and Collection Policy
that would not (i) impair the
collectibility of any Receivables in any material
respect or (ii) otherwise be reasonably
likely to have a Material Adverse
Effect.
(g) Change in Payment
Instructions to Obligors. The Seller will not
add or terminate any Deposit Account from
those listed in Schedule IV to this
Agreement, or make any change in its
instructions to Obligors regarding payments
to be made in respect of the Receivables or
payments to be made to any Deposit
Account, unless the Administrative Agent
shall have received notice of such
addition, termination or change (including
an updated Schedule IV) and a fully
executed Control Agreement with respect to
each new Deposit Account. Each
Deposit Account shall be maintained at all
times in the name of the Seller.
(h) Deposits to
Deposit Accounts. The Seller will cause all Obligors
to be instructed to remit all their
payments in respect of Receivables to
Deposit Accounts directly by wire transfer
or electronic funds transfer to the
relevant Deposit Account Bank. If the
Seller or the Servicer shall receive any
Collections directly, the Seller shall
promptly (and in any event within one
Business Day) cause such Collections to be
deposited into a Deposit Account. The
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Seller will not permit funds which do not
constitute Collections of Receivables
from being deposited into any Deposit
Account.
(i) Further
Assurances; Change in Name or Jurisdiction of
Organization, etc.
(A) The Seller agrees
from time to time, at its expense,
promptly to execute and deliver all further instruments and
documents,
and to take all further actions, that may be necessary or
desirable,
or that
the Administrative Agent or any Managing Agent may reasonably
request, to perfect, protect or more fully evidence the
Receivable
Interests purchased under this Agreement and/or security
interest
granted pursuant to this Agreement, or to enable the Conduit
Purchasers, the Committed Purchasers, the Managing Agents or
the
Administrative Agent to exercise and enforce their respective
rights
and remedies under this Agreement. Without limiting the foregoing,
the
Seller will, upon the request of the Administrative Agent or
any
Managing Agent, execute and file such financing or continuation
statements, or amendments thereto, and such other instruments
and
documents, that may be necessary or desirable, or that the
Administrative Agent or any Managing Agent may reasonably request,
to
perfect, protect or evidence such Receivable Interests and/or
such
security interest.
(B)
The Seller authorizes
the Administrative Agent to file
financing or continuation statements, and amendments thereto
and
assignments thereof, relating to the Receivables and the
Related
Security, the related Contracts and the Collections with
respect
thereto and the other collateral described in Section 2.15 without
the
signature of the Seller. A photocopy or other reproduction of
this
Agreement shall be sufficient as a financing statement where
permitted
by law.
(C) The Seller shall
at all times be organized under the laws of
the State of Delaware and shall not take any action to change
its
jurisdiction of organization.
(D) The Seller will
not change its name, identity, limited
liability company structure or tax identification number unless
(1)
the Administrative Agent shall have received at least thirty (30)
days
advance written notice of such change and (2) all actions by
the
Seller necessary or appropriate to perfect or maintain the
perfection
of the Receivable Interests and the secu
