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Exhibit
99.1
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND
SEVENTH AMENDMENT TO RECEIVABLES
PURCHASE
AGREEMENT
THIS ASSIGNMENT, ASSUMPTION
AND SEVENTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT, dated as
of June 23, 2008 (this “ Amendment ”) is
entered into among AMERISOURCE RECEIVABLES FINANCIAL CORPORATION, a
Delaware corporation (in such capacity, the “ Seller
”), AMERISOURCEBERGEN DRUG CORPORATION, a Delaware
corporation, as the initial Servicer (in such capacity, the “
Servicer ”), the ORIGINAL PURCHASER GROUPS (as defined
below), the NEW PURCHASER GROUPS (as defined below), WACHOVIA BANK,
NATIONAL ASSOCIATION (“ Wachovia ”), a national
banking association, as exiting administrator (in such capacity,
the “ Exiting Administrator ”) and BANK OF
AMERICA, NATIONAL ASSOCIATION (“ Bank of America
”), a national banking association, as new administrator (in
such capacity, the “ New Administrator
”).
R E C I T A L
S
A. The Seller, Servicer, the
Original Purchaser Groups and the Exiting Administrator have
entered into that certain Receivables Purchase Agreement, dated as
of July 10, 2003 (as amended, supplemented or otherwise
modified from time to time, the “ Agreement ” or
the “ Receivables Purchase Agreement
”).
B. The parties hereto desire
to enter into this Amendment to add new Purchaser Groups to the
Agreement, to effect the resignation of the Exiting Administrator
and the appointment of the New Administrator, to effect certain
assignments and to otherwise amend the Agreement as provided
herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Certain Defined
Terms . Capitalized terms used but not defined herein shall
have the meanings set forth for such terms in Exhibit I to
the Agreement. “ Original Purchaser Groups ”
means, collectively, Variable Funding Capital Company LLC’s
Purchaser Group, YC SUSI Trust’s Purchaser Group, Liberty
Street Funding LLC’s Purchaser Group and Market Street
Funding LLC’s Purchaser Group. “ Original Purchaser
Party ” means any Conduit Purchaser, Related Committed
Purchaser or Purchaser Agent member to an Original Purchaser Group.
“ Original Purchaser Agent ” means any Purchaser
Agent in an Original Purchaser Group.
2. Assumption
Agreement .
(a) Assumptions . This
Amendment constitutes an Assumption Agreement as defined in the
Agreement, and in furtherance thereof, the parties hereto hereby
effect the following assumptions:
(i)(A) The Seller desires
Manhattan Asset Funding Company LLC (“ Manhattan
”) to become a Conduit Purchaser under the Agreement and
Sumitomo
Mitsui Banking Corporation
(“ Sumitomo ” and, together with Manhattan, the
“ Manhattan Purchasers ”) to become a Related
Committed Purchaser for Manhattan under the Agreement, (B) the
Manhattan Purchasers desire to appoint SMBC Securities, Inc.
(“ SMBC ” and, together with Manhattan and
Sumitomo, the “ Manhattan Purchaser Group ”) as
Purchaser Agent for the Manhattan Purchasers under the Agreement
and, (C) upon the terms and subject to the conditions set
forth in this Amendment and the Agreement, the Manhattan Purchasers
shall become Purchasers thereunder and SMBC shall become the
Purchaser Agent for the Manhattan Purchasers thereunder.
(ii)(A) The Seller desires
Victory Receivables Corporation (“ Victory ”) to
become a Conduit Purchaser under the Agreement and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch (“ BTMU
”) to become a Related Committed Purchaser for Victory (BTMU,
in such capacity, together with Victory, the “ Victory
Purchasers ”) under the Agreement, (B) the Victory
Purchasers desire to appoint BTMU as Purchaser Agent for the
Victory Purchasers (BTMU, in such capacity, together with the
Victory Purchasers, the “ Victory Purchaser Group
”) under the Agreement, and (C) upon the terms and
subject to the conditions set forth in this Amendment and the
Agreement, the Victory Purchasers shall become Purchasers
thereunder and BTMU shall become the Purchaser Agent for the
Victory Purchasers thereunder.
(iii)(A) The Seller desires
Working Capital Management Co., LP (“ WCM ”) to
become a Conduit Purchaser under the Agreement and a Related
Committed Purchaser for itself (WCM, in its capacities as Conduit
Purchaser and Related Committed Purchaser for itself, the “
WCM Purchasers ”) under the Agreement, (B) the
WCM Purchasers desire to appoint Mizuho Corporate Bank, Ltd.
(“ Mizuho ”) as Purchaser Agent for the WCM
Purchasers (Mizuho, in such capacity, together with the WCM
Purchasers, the “ WCM Purchaser Group ”) under
the Agreement, and (C) upon the terms and subject to the
conditions set forth in this Amendment and the Agreement, the WCM
Purchasers shall become Purchasers thereunder and Mizuho shall
become the Purchaser Agent for the WCM Purchasers
thereunder.
(iv)(A) The Seller desires
Relationship Funding Company, LLC (“ RFC ”) to
become a Conduit Purchaser under the Agreement and Fifth Third Bank
(“ Fifth Third ”) to become a Related Committed
Purchaser for RFC (Fifth Third, in such capacity, together with
RFC, the “ RFC Purchasers ”; Fifth Third, in
such capacity, together with WCM, BTMU and Sumitomo, in their
respective capacities as Related Committed Purchasers, the “
New Related Committed Purchasers ”); the RFC
Purchasers together with the WCM Purchasers, Victory Purchasers and
Manhattan Purchasers, the “ New Purchasers ”)
under the Agreement, (B) the RFC Purchasers desire to appoint
Fifth Third as Purchaser Agent for the RFC Purchasers (Fifth Third,
in such capacity, together with the RFC Purchasers, the “
RFC Purchaser Group ”; Fifth Third, in its capacity as
Purchaser Agent, together with Mizuho, BTMU in its capacity as
Purchaser Agent and SMBC, the “ New Purchaser Agents
”; and the RFC Purchaser Group, together with the WCM
Purchaser Group, Victory Purchaser Group and Manhattan Purchaser
Group, the “ New Purchaser Groups ”) under the
Agreement, and (C) upon the terms and subject to the
conditions set forth in this Amendment and the Agreement, the RFC
Purchasers shall
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become Purchasers thereunder
and Fifth Third shall become the Purchaser Agent for the RFC
Purchasers thereunder.
(b) Each of the New
Purchasers and the New Purchaser Agents hereby agrees to join and
be bound by the Agreement in its respective Conduit Purchaser,
Related Committed Purchaser or Purchaser Agent capacity, effective
on the Effective Date. Each of the New Purchasers and the New
Purchaser Agents makes all of the applicable representations,
warranties and covenants set forth in the Agreement as of the date
hereof as if such representations, warranties and covenants were
fully set forth herein. Each of the New Purchasers and the New
Purchaser Agents hereby agrees that it shall be bound by all of the
applicable terms, commitments, conditions and provisions of, and
shall be a party to, the Agreement as amended hereby. From and
after the Effective Date, each New Purchaser and New Purchaser
Agent shall be a Conduit Purchaser, Related Committed Purchaser or
Purchaser Agent, as applicable, for all purposes of the Agreement
and the other Transaction Documents. The Commitment with respect to
each New Related Committed Purchaser shall be as set forth below
its signature to this Amendment. The Scheduled Facility Termination
Date with respect to each New Purchaser Group shall be as set forth
on such New Purchaser Group’s signature page to this
Amendment. The address for notice with respect to each New
Purchaser and New Purchaser Agent shall be as set forth below such
party’s signature to this Amendment.
(c) By executing and
delivering this Amendment, each of the New Purchasers and the New
Purchaser Agents confirms to and agrees with the Exiting
Administrator, the New Administrator and the Original Purchaser
Parties as follows:
(i) none of the Exiting
Administrator, New Administrator or the Original Purchaser Parties
makes any representation or warranty or assumes any responsibility
with respect to any statements, warranties or representations made
in or in connection with the Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the
Agreement or any other Transaction Document or any other instrument
or document furnished pursuant thereto or hereto, or with respect
to the collateral or the financial condition of any Seller Party or
the Performance Guarantor or any affiliate thereof, or the
performance or observance by any Seller Party or the Performance
Guarantor or any affiliate thereof of its respective obligations
under the Agreement or any other Transaction Document or any other
instrument or document furnished pursuant thereto or
hereto;
(ii) it has received a copy
of such documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Amendment, become a party to the Agreement and become a Conduit
Purchaser, Related Committed Purchaser or Purchaser Agent, as
applicable;
(iii) it will, independently
and without reliance upon the Exiting Administrator, the New
Administrator or the Original Purchaser Parties, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Agreement or the other Transaction Documents;
and
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(iv) it agrees (for the
benefit of the parties hereto) that it will perform in accordance
with their terms all of the obligations which by their terms of
this Amendment, the Agreement and the other Transaction Documents
are required to be performed by it as a Conduit Purchaser, Related
Committed Purchaser or Purchaser Agent, as applicable.
3. Assignments . This
Amendment constitutes a Transfer Supplement as defined in the
Agreement, and in furtherance thereof, the parties hereto hereby
effect the following assignments:
(a) Assignment by VFCC
. As of the Effective Date, VFCC hereby assigns and transfers to YC
SUSI Trust, without recourse to or representation or warranty of
any kind (except that it has not created any Lien upon any
interests being transferred by it hereunder), and YC SUSI Trust
hereby irrevocably takes, receives and assumes from VFCC, an
undivided 17.8571% interest in VFCC’s rights and obligations
under the Receivables Purchase Agreement and the other Transaction
Documents. Seller, VFCC and YC SUSI Trust acknowledge and agree
that (i) immediately prior to this assignment, VFCC’s
Invested Amount and Discount allocable to such Invested Amount are,
in each case, zero and (ii) any accrued and unpaid fees
(whether or not then due) that are allocable to such assigned
amount and owing to VFCC as of the date hereof shall be paid by
Seller to VFCC on the next Settlement Date pursuant to the priority
of payments set forth in the Receivables Purchase
Agreement.
(b) Assignment by
Wachovia . As of the Effective Date, Wachovia, in its capacity
as a Related Committed Purchaser for VFCC, hereby assigns and
transfers to Bank of America, in its capacity as a Related
Committed Purchaser for YC SUSI Trust, without recourse and without
representation or warranty of any kind (except that it has not
created any Lien upon any interests being transferred by it
hereunder), and Bank of America, in its capacity as a Related
Committed Purchaser for YC SUSI Trust, hereby irrevocably takes,
receives and assumes from Wachovia, an undivided 17.8571% interest
in Wachovia’s Commitment under the Receivables Purchase
Agreement representing $31,250,000, and all rights and obligations
as a Related Committed Purchaser in connection therewith. Upon the
effectiveness of this assignment, the Commitment of Wachovia, in
its capacity as a Related Committed Purchaser for VFCC, shall be
$143,750,000 and the Commitment of Bank of America, in its capacity
as a Related Committed Purchaser for YC SUSI Trust, shall be
$125,000,000 ( provided , that the Commitment of Bank of
America, in its capacity as a Related Committed Purchaser for YC
SUSI Trust, shall increase to $175,000,000 after giving effect to
the amendments in Section 5 of this
Amendment).
(c) Each of the parties
hereto hereby consents to the assignments set forth in this
Section 3 , and expressly waives any notice
requirements set forth in the Receivables Purchase Agreement or any
other Transaction Document as a prerequisite or condition precedent
to such assignment.
4. Administrator
Resignation, Assignment and Appointment .
(a) Effective as of the
Administrator Effective Date, Wachovia hereby resigns as
Administrator under the Receivables Purchase Agreement and the
other Transaction Documents and assigns to Bank of America, without
recourse and without representation or warranty of any
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kind, and Bank of America hereby
irrevocably assumes, all of Wachovia’s rights and obligations
as Administrator under the Receivables Purchase Agreement and the
other Transaction Documents. Pursuant to and in accordance with
Section 11.1(a) of the Receivables Purchase Agreement,
as of the Administrator Effective Date each Purchaser and Purchaser
Agent hereby designates Bank of America, and Bank of America hereby
agrees to perform the duties and obligations of, Administrator.
Wachovia hereby authorizes Bank of America to file any Uniform
Commercial Code financing statements or similar filings on or after
the Administrator Effective Date that may be necessary to assign to
Bank of America, in its capacity as Administrator, any security
interests or other rights, if applicable, granted to the Exiting
Administrator under the Receivables Purchase Agreement and the
other Transaction Documents. Each of the parties hereto hereby
expressly waives any notice requirements set forth in the
Receivables Purchase Agreement or any other Transaction Document as
a prerequisite or condition precedent to such resignation,
assignment or appointment. From and after the Administrator
Effective Date, Wachovia, solely in its capacity as Administrator,
shall cease to be a party to the Receivables Purchase Agreement and
shall no longer have any obligations or rights under the
Receivables Purchase Agreement or any other Transaction Document in
such capacity (other than such obligations which by their express
terms survive termination thereof).
(b) Each reference to the
Administrator’s name, address, contact person, facsimile
number and telephone number in the Agreement is hereby amended and
restated such that each such reference reads as follows, effective
as of the Administrator Effective Date:
Bank of America, National
Association
214 North Tryon
Street
NC1-027-19-01
Charlotte, NC
28255
Attention: Nina C.
Stevenson
Fax:
(704) 388-9169
Telephone:
(704) 388-3539
(c) Each of the parties
hereto hereby agrees that, if the Administrator Effective Date
shall not have occurred on or before July 25, 2008 (as such
date may be extended by the New Administrator and the Exiting
Administrator with notice to the other parties hereto):
(i)(A) so long as no
Amortization Event shall have then occurred and be continuing,
(1) Bank of America, in its capacity as a Related Committed
Purchaser for YC SUSI Trust and YC SUSI Trust shall assign and
transfer to, respectively, Wachovia, in its capacity as a Related
Committed Purchaser for VFCC and VFCC, and each of Wachovia and
VFCC shall take, receive and assume, an undivided 17.8571% interest
in such assignor party’s rights and obligations under the
Receivables Purchase Agreement and the other Transaction Documents
and, as applicable, in Bank of America’s Commitment, without
recourse and without representation or warranty of any kind (except
that such assignor party has not created any Lien upon any
interests being transferred by it hereunder);
(2) (a) VFCC shall pay to YC SUSI Trust on the date of
such assignment, in immediately available funds, an amount equal to
the purchase price representing the portion of YC SUSI’s
Invested Amount being so assigned and Discount, if any, allocable
to the Invested Amount being so assigned as agreed between VFCC and
YC SUSI Trust; (3) the Seller shall pay to YC SUSI Trust any
accrued and unpaid fees
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(whether or not then due)
that are allocable to such assigned amount and owing to YC SUSI
Trust as of the date of such assignment on the next Settlement Date
pursuant to the priority of payments set forth in the Receivables
Purchase Agreement and (4) upon such assignment, the
Commitment of Wachovia, in its capacity as a Related Committed
Purchaser for VFCC, shall be $175,000,000 and the Commitment of
Bank of America, in its capacity as a Related Committed Purchaser
for YC SUSI Trust, shall be $143,750,000 with a single
“Scheduled Facility Termination Date” of
November 13, 2009 (provided, that the Commitment of Bank of
America, in its capacity as a Related Committed Purchaser for YC
SUSI Trust, shall be further reduced to $93,750,000 pursuant to
clause (ii) below whether or not the assignment
contemplated by this clause (i)(A) occurs and provided,
further, that if the Commitment of Bank of America shall have been
increased or decreased after the Effective Date but prior to the
date of the assignment contemplated by this clause (i)(A) ,
in the event of a decrease, the assigned amount shall be decreased
ratably but in the event of an increase, the assigned amount shall
not be increased and shall in no event exceed $31,250,000, and the
respective Commitments of Wachovia and Bank of America shall be
adjusted accordingly); or
(B) if an Amortization Event
shall have then occurred and be continuing, Bank of America and YC
SUSI Trust shall not assign any portion of their rights and
obligations and, as applicable, Commitment to Wachovia and
VFCC;
(ii) After giving effect to
the assignment contemplated in clause (i)(A) above, if any,
(A) Bank of America shall reduce its aggregate Commitment to
be $93,750,000 with a single “Scheduled Facility Termination
Date” of November 13, 2009 and the Seller shall pay to
Bank of America, as Purchaser Agent for the benefit of its related
Purchasers, (1) to the extent the Group Invested Amount of YC
SUSI Trust’s Purchaser Group would exceed its Group
Commitment after giving effect to such reduction pursuant to this
clause (ii) , immediately upon such reduction an amount to
be applied to reduce such Group Invested Amount such that after
giving effect to such payment, such Group Invested Amount is equal
to its Group Commitment and (2) any accrued and unpaid fees
(whether or not then due) that are allocable to such reduced amount
and owing to YC SUSI Trust as of the date of such assignment on the
next Settlement Date pursuant to the priority of payments set forth
in the Receivables Purchase Agreement and (B) the Purchase
Limit shall be reduced by (1) if the assignment contemplated
in clause (i)(A) above did not occur, $81,250,000 or
(2) if the assignment contemplated in clause (i)(A)
above did occur, $50,000,000 (provided, that if the Commitment of
Bank of America shall have been increased or decreased after the
Effective Date but prior to the date of the reduction contemplated
by this clause (ii) , the amount by which Bank of
America’s Commitment and the Purchase Limit shall be reduced
shall be adjusted accordingly); and
(iii) the resignation,
assignment and appointment of the Administrator contemplated by
this Section 4 shall be null and void.
(d) For purposes of this
Section 4 , “ Administrator Effective Date
” shall mean the date that each of the following conditions
are satisfied:
(i) the New Administrator and
the Exiting Administrator shall have received evidence that each
Collection Account Agreement has either (a) been assigned to
the
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New Administrator or
(b) been amended and restated or replaced with a new
Collection Account Agreement naming the New Administrator as
administrator thereunder;
(ii) the New Administrator
shall have received (i) counterparts of a fee letter, executed
by the Seller, the Servicer and the New Administrator, in form and
substance satisfactory to the New Administrator and (ii) the
“administrative fee” referred to therein;
and
(iii) the Exiting
Administrator shall have not otherwise have resigned, and a
successor Administrator shall not otherwise have been appointed,
under Section 11.9 of the Agreement.
5. Amendments to the
Agreement . The Agreement is hereby amended as
follows:
(a) Clause (X)
of Section 1.1(b) of the Agreement is hereby
amended by (x) deleting each reference to the amount
“$500,000,000” therein and substituting in each case
the phrase “the Non-Accordion Purchase Limit” and
(y) deleting the amount “$750,000,000” therein and
substituting the phrase “the sum of (A) the
Non-Accordion Purchase Limit and
(B) “$250,000,000” therefor.
(b) Clause (Y)
of Section 1.1(b) of the Agreement is hereby
amended by deleting the amount “500,000,000” therein
and substituting the phrase “the Non-Accordion Purchase
Limit” therefor.
(c) Section 1.1
of the Agreement is hereby amended by inserting immediately after
clause (b) thereof the following new clause (c)
:
(c) Seller may, upon at least
30 days’ notice to the Administrator (which shall promptly
forward a copy to each Purchaser Agent), terminate in whole or
reduce in part, the unused portion of the Purchase Limit (but not
below the amount which would cause the Group Invested Amount of any
Purchaser Group to exceed its Group Commitment (after giving effect
to such reduction) and, unless terminated in whole, not below
$100,000,000); provided that each partial reduction
of the Purchase Limit shall be in an amount equal to $10,000,000
(or a larger integral multiple of $1,000,000 if in excess thereof).
Such reduction shall, unless otherwise agreed to in writing by the
Seller, the Administrator and each Purchaser Agent be applied
ratably to reduce the Group Commitment of each Purchaser Group;
provided that if the Seller requests such reduction
during an Accordion Period and the Purchase Limit is then greater
than the Non-Accordion Purchase Limit, the Purchase Limit shall
first be reduced to equal the Non-Accordion Purchase Limit in
accordance with Section 1.1(b) prior to effecting any
reduction under this clause (c) .
(d) Section 3.1
of the Agreement is hereby amended by and restated in its entirety
as follows:
Section 3.1 CP
Costs . Seller shall pay CP Costs with respect to the Invested
Amount of all Receivable Interests funded through the issuance of
Commercial Paper.
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(e) Each reference to the
“officers” or “directors” (or words of
similar effect) of any of the Administrator, Purchaser Agents,
Purchasers, Funding Sources or Liquidity Agents set forth in any of
Sections 10.1 , 11.3 , 11.6 , 11.8 or
13.4 of the Agreement shall be deemed to include a reference
to “members”, “partners” and
“certificateholders”.
(f) The first sentence of
Clause (d) of Section 12.1 of the
Agreement is hereby amended by inserting, immediately after the
words “participating interests” therein, the following
parenthetical:
(or voting rights or a
security interest and right of foreclosure thereon)
(g) Clause (e)(i) of
Section 12.1 of the Agreement is hereby amended by
deleting the reference to “Purchased Interest” therein
and substituting a reference to “Receivable Interests”
therefor.
(h) Clause (f)
of Section 12.1 of the Agreement is hereby
amended by inserting, immediately after the words “Transfer
Supplement” therein, the following parenthetical:
(other than a Transfer
Supplement to which RFC is a party)
(i) Clause (i)
of Section 13.1(b) of the Agreement is hereby
amended and restated in its entirety as follows:
(i) without the consent of
each Purchaser affected thereby, (A) extend the Facility
Termination Date for the related Purchaser Group or the date of any
payment or deposit of Collections by Seller or the Servicer,
(B) reduce the rate or extend the time of payment of Yield or
any CP Costs (or any component of Yield or CP Costs),
(C) change any fee payable to such Purchaser, (D) change
the Invested Amount of any Receivable Interest, (E) amend,
modify or waive any provision of the definition of Required
Purchaser Agents, Section 9.1, Section 12.1(d),
Section 12.1(e), this Section 13.1(b), Section 13.5,
Section 13.6(b) or Section 13.13, (F) consent to or
permit the assignment or transfer by Seller of any of its rights
and obligations under this Agreement, (G) change the
definition of “Available Commitment,”
“Commitment,” “Dilution Reserve,”
“Eligible Receivable,” “Government Receivable
Excess,” “Liquidity Agreement”, “Loss
Reserve,” “Obligor Concentration Limit,”
“Yield Reserve,” “Purchase Limit,”
“Purchase Price,” “Rebate Reserve,”
“Required Reserve,” “Required Reserve Factor
Floor” “Servicing Fee Rate,” or “Servicing
Reserve” or (H) amend or modify any defined term (or
any defined term used directly or indirectly in such defined term)
used in clauses (A) through (G) above in a manner that
would circumvent the intention of the restrictions set forth in
such clauses ; or
(j) Section 13.5
of the Agreement is hereby amended and restated in its entirety as
follows:
Section 13.5
Bankruptcy Petition . Each party hereto hereby covenants and
agrees that prior to the date which is one year and one day after
the payment in full of all outstanding commercial paper notes or
other indebtedness of each Conduit Purchaser, it
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will not institute against or
join any other Person in instituting against such Conduit Purchaser
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
(k) Section 13.6
of the Agreement is hereby amended and restated in its entirety as
follows:
Section 13.6
Limitation of Liability . (a) No claim may be made by
any Seller Party or any other Person against the Administrator, any
Purchaser Agent, any Purchaser or any other Funding Source or their
respective Affiliates, directors, officers, members, partners,
certificateholders, employees, attorneys or agents for any special,
indirect, consequential or punitive damages in respect of any claim
for breach of contract or any other theory of liability arising out
of or related to the transactions contemplated by this Agreement,
or any act, omission or event occurring in connection therewith;
and each Seller Party hereby waives, releases, and agrees not to
sue upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor, and
(b) no Purchaser shall have any obligation to pay any amounts
owing hereunder unless and until such Purchaser has received such
amounts pursuant to its portion of the Receivable Interests and
such amounts are not necessary to pay outstanding commercial paper
notes or other outstanding indebtedness of such Purchaser. In
addition, each party hereto hereby agrees that no liability or
obligation of any Purchaser hereunder for fees, expenses or
indemnities shall constitute a claim (as defined in Sect
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