SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM 10-K/A
(Amendment No. 1, amending Items 4A and 14)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 or 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ________________ to ________________
Commission file number 1-5110
BERGEN BRUNSWIG CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-1444512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4000 Metropolitan Drive, Orange, California 92868-3510
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (714) 385-4000
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
Class A Common Stock - New York Stock Exchange
par value $1.50 per share
6 7/8% Exchangeable Subordinated New York Stock Exchange
Debentures due July 15, 2011
$150,000,000 7 3/8% Senior Notes New York Stock Exchange
due 2003
7.80% Trust Originated Preferred New York Stock Exchange
Securities SM ("TOPrS SM")
Securities registered pursuant to Section 12(g) of the Act:
7% Convertible Subordinated Debentures due March 1, 2006 -
Durr-Fillauer Medical, Inc.
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No__
At November 30, 1999, 134,218,013 shares of Class A Common Stock were
outstanding. The aggregate market value of the Class A Common Stock held by
nonaffiliates of the registrant on November 30, 1999 was $1,059,462,682.
Documents Incorporated by Reference
List hereunder the following documents if incorporated by reference and the part
of the Form 10-K into which the document is incorporated:
Within 120 days after September 30, 1999, the Company will either file a
definitive proxy statement for its 2000 annual meeting of shareowners which will
be incorporated by reference in Part III of this Annual Report on Form 10-K or
will file an amendment to this Annual Report to provide the information called
for by such Part III.
<PAGE>
ITEM 4A. EXECUTIVE OFFICERS OF THE REGISTRANT
(Amended to provide updated information regarding Mr. Elliott)
Identification of Executive Officers.
The Executive officers of the Company are elected by, and serve at the
pleasure of, the Board of Directors. Each executive officer holds office until
the next election of officers which is generally held in December, January or
February of each year. The current executive officers of the Company, and their
respective principal occupations and employment during the last five years ended
September 30, 1999, are listed alphabetically as follows:
Linda M. Burkett, 49, Executive Vice President, Chief Information
Officer (since September 1996); Executive Vice President and Chief Information
Officer, Bergen Brunswig Drug Company (since 1995); Vice President, IR Support
Services (1992-1995).
Charles J. Carpenter, 50, President, PharMerica, Inc. (since April
1999); Executive Vice President of the Company (since 1996); Chief Procurement
Officer (1996-April 1999); Executive Vice President, Supplier Relations and
Operations, Bergen Brunswig Drug Company (1995-1996); Executive Vice President,
Northeast Region (1994-1995).
Neil F. Dimick, 50, Executive Vice President, Chief Financial Officer
(since 1992); President, Bergen Brunswig Specialty Company (since September
1996). Mr. Dimick is also a member of the Board of Directors.
William J. Elliott, 50, Executive Vice President of the Company and
President, Bergen Brunswig Medical Corporation (since October 1996). Mr. Elliott
resigned effective December 23, 1999.
Brent R. Martini, 40, Executive Vice President of the Company and
President, Bergen Brunswig Drug Company (since September 1996); Executive Vice
President, Bergen Brunswig Drug Company, West Region (1994-1996). Brent R.
Martini is the son of Robert E. Martini. Brent R. Martini is also a member of
the Board of Directors (since December 1999).
Robert E. Martini, 67, Chairman of the Board (since 1992); interim
Chief Executive Officer (since November 1999); a consultant to the Company
(since January 1997); Chief Executive Officer (1990-January 1997). Mr. Martini
is also a member of the Board of Directors.
Andrew P. McVay, 39, Vice President and Controller of Bergen Brunswig
Drug Company (since July 1997); Controller, West Region, Bergen Brunswig Drug
Company (1994-July 1997).
Milan A. Sawdei, 53, Secretary (since July 1992); Executive Vice
President (since April 1992); Chief Legal Officer (since 1989).
Carol E. Scherman, 44, Executive Vice President, Human Resources
(since September 1996); Executive Vice President, Human Resources (since 1994),
Bergen Brunswig Drug Company; Vice President, Human Resources and Associate
Relations (1993-1994).
Eric J. Schmitt, 49, Vice President, Finance and Treasurer (since
February 1994); Vice President, Financial Planning (1989-1994).
<PAGE>
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(Amended to add Exhibits 10(w), 10(x) and 10(y) and to add cross
references in the descriptions of Exhibit 10(f) and 10(g))
(a) Documents filed as part of this report:
1. Financial Statements
The following Consolidated Financial Statements of Bergen Brunswig
Corporation and Subsidiaries are included in Part II, Item 8:
Statements of Consolidated Earnings for the Years
Ended September 30, 1999, 1998 and 1997
Consolidated Balance Sheets, September 30, 1999
and 1998
Statements of Consolidated Shareowners' Equity for
the Years Ended September 30, 1999, 1998 and 1997
Statements of Consolidated Cash Flows for the Years
Ended September 30, 1999, 1998 and 1997
Notes to Consolidated Financial Statements
Independent Auditors' Report
Financial statements and schedules not listed are omitted because of the
absence of the conditions under which they are required or because all
material information is included in the consolidated financial statements
or notes thereto.
3. Exhibits
*2 Agreement and Plan of Merger dated as of January 11, 1999 by and
among Bergen Brunswig Corporation, Peacock Merger Corp. and
PharMerica, Inc. is set forth as Annex A to the Company's
Registration Statement on Form S-4 (file no. 333-74445) dated as
of March 16, 1999.
*3(a)Certificate of Amendment to the Restated Certificate of
Incorporation dated May 7, 1999, and the Restated Certificate of
Incorporation, as amended, is set forth as Exhibit 3 in the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
3(b) The By-laws as amended and restated, dated November 13, 1998, as
amended November 2, 1999.
*4(a)The Indenture for Senior Debt Securities and Indenture for
Subordinated Debt Securities, both dated as of May 14, 1999,
between the Company and Chase Manhattan Bank and Trust Company,
National Association, as Trustee are set forth as Exhibits 4.5
and 4.6 to the Company's Registration Statement on Form S-3/A
dated May 14, 1999 (file no. 333-74349)
*4(b)The Senior Indenture for $400,000,000 of Debt Securities dated
as of December 1, 1992 between the Company and Chemical Trust
Company of California as Trustee is set forth as Exhibit 4.1 to
the Company's Registration Statement on Form S-3 dated December
1, 1992 (file no. 33-55136).
The Company agrees to furnish to the Securities and Exchange
Commission, upon request, a copy of each instrument with respect
to other issues of long-term debt of the Company, the authorized
principal amount of which does not exceed 10% of the total assets
of the Company on a consolidated basis.
4(c) Amended and Restated Rights Agreement, dated as of December 17,
1999, between Bergen Brunswig Corporation and Chase Mellon
Shareholder Services, Inc., as Rights Agent, including all
exhibits thereto.
*10(a) Bergen Brunswig Corporation 1999 Non-Employee Directors' Stock
Plan.
*10(b) Bergen Brunswig Corporation 1999 Management Stock Incentive Plan.
*10(c) Bergen Brunswig Corporation 1999 Deferred Compensation Plan
*10(d) Bergen Brunswig Corporation 1999 Management Stock Accumulation
Plan.
*10(e) Bergen Brunswig Corporation 1999 Employee Stock Purchase Plan
Exhibits 10(a), 10(b), 10(c), 10(d) and 10(e) are set forth as
Annexes E, F, G, H and I respectively, to the Company's
Registration Statement on Form S-4 (file no. 333-7445) dated as of
March 16, 1999.
*10(f) Amended and Restated Credit Agreement dated as of September 30,
1994, as amended by the First Amendment dated as of February 27,
1995, the Second Amendment dated as of March 15, 1996, the Third
Amendment dated as of October 23, 1998 and the Fourth Amendment
(including Joinder Agreement with PharMerica, Inc.) dated as of
April 23, 1999, among Bergen Brunswig Drug Company, Bergen
Brunswig Corporation and Bank of America National Trust and
Savings Association. See also Exhibit 10(w).
*10(g) Credit Agreement (including Joinder Agreement with PharMerica,
Inc.) dated as of April 23, 1999, among Bergen Brunswig Drug
Company, Bergen Brunswig Corporation and Bank of America National
Trust and Savings Association. See also Exhibit 10(x)
*10(h) Commercial Paper Dealer Agreement 4(2) Program dated as of April
19, 1999 and Private Placement Memorandum dated May 1999 between
Bergen Brunswig Corporation and Chase Securities, Inc.
Exhibits 10(f), 10(g) and 10(h) are set forth as Exhibits 10(e),
10(f) and 10(g), respectively, to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1999.
*10(i) Bergen Brunswig Corporation Deferred Compensation Plan.
*10(j) Director Indemnification Agreement and Amendment to Director
Indemnification Agreement.
*10(k) Bergen Brunswig Corporation Bonus Plan as adopted September 1,
1977 and amended October 19, 1990.
*10(l) Amended and Restated 1989 Stock Incentive Plan of Bergen Brunswig
Corporation and Subsidiary Companies.
*10(m) Retired Officers' Medical Plan
Exhibit 10(k), 10(l) and 10(m) are set forth as Exhibits 10(e),
10(g) and 10(o) in the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1997.
*10(n) Bergen Brunswig Corporation Stock Option Plans, other than the
Amended and Restated 1989 Stock Incentive Plan and the 1999
Management Stock Incentive Plan.
*10(o) Form of Amended and Restated Capital Accumulation Plan is set
forth as Exhibit 10.2 in the Company's Registration Statement on
Form S-3 and Amendment No. 1 thereto relating to a shelf offering
of $400 million in securities filed February 1, 1996 and March 19,
1996, respectively (file no. 333-631).
*10(p) Amended and Restated Supplemental Executive Retirement Plan dated
September 24, 1998.
*10(q) Amendment No. 1 to the Amended and Restated Capital Accumulation
Plan is set forth as Exhibit 10(m) in the Company's Annual Report
on Form 10-K for the fiscal year ended September 30, 1996.
*10(r) Amended and Restated Executive Loan Program dated March 3, 1995 is
forth as Exhibit 10(g) in the Company's Annual Report on Form 10-K
for the fiscal year ended September 30, 1995.
*10(s) Employment Agreement and Schedule.
*10(t) Severance Agreement and Schedule
Exhibits 10(s) and 10(t) above are set forth as Exhibit 10(q) and
10(r) in the Company's Annual Report of Form 10-K for the fiscal
year ended September 30, 1994.
*10(u) Stock Purchase Agreement, dated as of November 8, 1998, by and
among Stadtlander Drug Co., Counsel Corporation, Stadt Holdings
Inc., and the Company is set forth as Exhibit 2.1 to the Company's
Report on Schedule 13D, dated November 18, 1998, filed with
respect to PharMerica, Inc.
*10(v) Indenture dated March 13, 1998 related to PharMerica's 8 3/8%
Senior Subordinated Notes is set forth as Exhibit 4.9 to
PharMerica's Registration Statement on Form S-4 filed May 15,
1998.
10(w) The Fifth Amendment dated as of September 30, 1999, and the Sixth
Amendment dated as of December 13, 1999, to the Amended and
Restated Credit Agreement among Bergen Brunswig Drug Company,
Bergen Brunswig Corporation and Bank of America National Trust and
Savings Association. Such Amended and Restated Credit Agreement is
referred to herein as Exhibit 10(f).
10(x) The First Amendment dated as of September 30, 1999, and the Second
Amendment dated as of December 13, 1999, to the Credit Agreement
among Bergen Brunswig Drug Company, Bergen Brunswig Corporation
and Bank of America National Trust and Savings Association. Such
Credit Agreement is referred to herein as Exhibit 10(g).
10(y) Receivables Sale Agreement dated as of December 17, 1999 among
Blue Hill, Inc., Bergen Brunswig Drug Company, Wachovia Bank, N.A.
and others.
21 List of subsidiaries of Bergen Brunswig Corporation.
23 Independent Auditors' Consent.
24 Power of Attorney is set forth on the Signature pages in Part
IV of this Annual Report, as initially filed.
27 Financial Data Schedule for the year ended September 30, 1999.
99(a) Statement Regarding Forward-Looking Information.
*99(b) Split Dollar Life Insurance Plan with Robert E. Martini is set
forth as Exhibit 99(b) in the Company's Annual Report on Form
10-K for the fiscal year ended September 30, 1997.
*99(c) Item 1 - Legal Proceedings of Part II of the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1994, are incorporated herein by reference in Part I, Item 3 of
this Annual Report.
* Document has heretofore been filed with the Securities and Exchange
Commission and is incorporated herein by reference and made a part hereof.
** Incorporated herein by reference to the exhibits filed as part of the
Company's Registration Statement on Form S-3 (Registration No. 33-5530) and
Amendment Nos. 1 and 2 thereto relating to an offering of $43,000,000
principal amount of 6 7/8% Exchangeable Subordinated Debentures due 2011,
filed with the Securities and Exchange Commission on May 8, July 1, and July
8, 1986, respectively.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Amendment No. 1 to its
Annual Report on Form 10-K for the year ended September 30, 1999 to be signed on
its behalf by the undersigned, thereunto duly authorized.
BERGEN BRUNSWIG CORPORATION
By: /s/Milan A. Sawdei
January 6, 2000 Milan A. Sawdei
Executive Vice President
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Amendment No. 1 to the Registrant's Annual Report on Form 10-K for the year
ended September 30, 1999 has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ Robert E. Martini* Chairman of the Board and January 6, 2000
Robert E. Martini Chief Executive Officer
/s/ Neil F. Dimick* Executive Vice President, January 6, 2000
Neil F. Dimick Chief Financial Officer
and Director
(Principal Financial Officer and
Principal Accounting Officer)
/s/ Jose E. Blanco, Sr.* Director January 6, 2000
Jose E. Blanco
/s/ Rodney H. Brady* Director January 6, 2000
Rodney H. Brady
/s/ Charles C. Edwards, M.D.* Director January 6, 2000
Charles c. Edwards
/s/ Charles J. Lee* Director January 6, 2000
Charles J. Lee
/s/ George R. Liddle* Director January 6, 2000
George R. Liddle
/s/ Brent R. Martini* Director January 6, 2000
Brent R. Martini
/s/ James R. Mellor* Director January 6, 2000
James R. Mellor
/s/ George E. Reinhardt, Jr.* Director January 6, 2000
George E. Reinhardt, Jr.
Director
Donald R. Roden
/s/ Francis G. Rodgers* Director January 6, 2000
Francis G. Rodgers
*By: /s/ Milan A. Sawdei
Milan A. Sawdei
Attorney-in-fact
</TABLE>
<PAGE>
EXHIBIT INDEX
10(w) The Fifth Amendment dated as of September 30, 1999, and the Sixth
Amendment dated as of December 13, 1999, to the Amended and
Restated Credit Agreement among Bergen Brunswig Drug Company,
Bergen Brunswig Corporation and Bank of America National Trust and
Savings Association. Such Amended and Restated Credit Agreement is
referred to herein as Exhibit 10(f).
10(x) The First Amendment dated as of September 30, 1999, and the Second
Amendment dated as of December 13, 1999, to the Credit Agreement
among Bergen Brunswig Drug Company, Bergen Brunswig Corporation
and Bank of America National Trust and Savings Association. Such
Credit Agreement is referred to herein as Exhibit 10(g).
10(y) Receivables Sale Agreement dated as of December 17, 1999 among
Blue Hill, Inc., Bergen Brunswig Drug Company, Wachovia Bank, N.A.
and others.
EXHIBIT 10-W
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is made
and dated as of September 30, 1999 (the "Fifth Amendment") among BERGEN BRUNSWIG
DRUG COMPANY, a California corporation (the "Borrower" or "Bergen Drug"), BERGEN
BRUNSWIG CORPORATION, a New Jersey corporation (the "Parent"), PHARMERICA, INC.,
a Delaware corporation ("PharMerica"; PharMerica, the Parent and Bergen Drug are
collectively called the "Borrowers"), the Lenders party to the Amended and
Restated Credit Agreement referred to below, and BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association, as Agent (the "Agent"), and amends
that certain Amended and Restated Credit Agreement dated as of September 30,
1994, as amended by that certain First Amendment to Amended and Restated Credit
Agreement dated as of February 27, 1995, by that certain Second Amendment to
Amended and Restated Credit Agreement dated as of March 15, 1996, by that
certain Third Amendment to Amended and Restated Credit Agreement dated as of
October 23, 1998 and by that certain Fourth Amendment to Amended and Restated
Credit Agreement dated as of April 23, 1999 (as so amended or modified from time
to time, the "Credit Agreement").
RECITALS
WHEREAS, the Borrowers have requested the Agent and the Lenders to
amend the Credit Agreement to provide that up to $300,000,000 of receivables may
be sold in a Permitted Receivables Transaction (as defined in the Credit
Agreement), and the Agent and the Required Lenders are willing to do so, on the
terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein. All references to the Credit
Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Borrowers, the Agent and the Lenders hereby agree
that the definition of the term "Permitted Receivables Transaction" in Schedule
I to the Credit Agreement shall be amended and restated to read in its entirety
as follows:
"Permitted Receivables Transaction" means any agreement of the
Parent or any of its Subsidiaries providing for sales, transfers or
conveyances of up to $300,000,000 of receivables purporting to be sales
(and considered sales under GAAP).
<PAGE>
3. Representations and Warranties. The Borrowers each represent and
warrant to the Agent and the Lenders that, on and as of the date hereof and as
of the date the conditions set forth in Section 4 hereof shall have been
satisfied, and after giving effect to this Fifth Amendment:
3.1 Authorization. The execution, delivery and performance by
each of the Borrowers of this Fifth Amendment has been duly authorized by all
necessary corporate action by each of them, and this Fifth Amendment has been
duly executed and delivered by the Borrowers.
3.2 Binding Obligation. This Fifth Amendment constitutes the
legal, valid and binding obligations of the Borrowers, enforceable against each
of them respectively in accordance with its terms.
3.3 No Legal Obstacle to Fifth Amendment. The execution,
delivery and performance of this Fifth Amendment will not (a) contravene the
Organic Documents of any of the Borrowers; (b) constitute a breach or default
under any contractual restriction or violate or contravene any law or
governmental regulation or court decree or order binding on or affecting any of
the Borrowers which individually or in the aggregate does or could reasonably be
expected to have a Materially Adverse Effect; or (c) result in, or require the
creation or imposition of, any Lien on any Borrower's properties. No approval or
authorization of any governmental authority or regulatory body or other Person
is required to permit the execution, delivery or performance by the Borrowers of
this Fifth Amendment, or the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The
representations and warranties of the Borrowers set forth in Article VI of the
Credit Agreement are true and correct in all respects on and as of the date
hereof as though made on and as of the date hereof, except as to such
representations made as of an earlier specified date.
3.5 Default. No Default or Event of Default has occurred and
is continuing.
4. Conditions, Effectiveness. The effectiveness of this Fifth Amendment
shall be subject to the compliance by the Borrowers with their agreements herein
contained, and the following:
4.1 Counterparts. The delivery to the Agent of counterparts of
this Fifth Amendment executed by the Borrowers, the Required Lenders and the
Agent.
4.2 Resolutions, etc. The Agent shall have received from each
of the Borrowers a certificate, dated as of the date hereof, of its Secretary or
Assistant Secretary as to:
<PAGE>
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of this
Agreement and each other Credit Document to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of
each of the Borrowers canceling or amending such prior certificate.
4.3 Other Evidence. The delivery to the Agent of such other
evidence with respect to the Borrowers or any other person as the Agent or any
Lender may reasonably request in connection with this Fifth Amendment and the
compliance with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Credit Agreement and the Notes.
Except as hereby expressly amended, the Credit Agreement, the Notes and the
other Credit Documents shall each remain in full force and effect, and are
hereby ratified and confirmed in all respects on and as of the date hereof.
5.2 Waivers. This Fifth Amendment is limited solely to the
matters expressly set forth herein and is specific in time and in intent and
does not constitute, nor should it be construed as, a waiver or amendment of any
other term or condition, right, power or privilege under the Credit Agreement or
under any agreement, contract, indenture, document or instrument mentioned
therein; nor does it preclude or prejudice any rights of the Agent or the
Lenders thereunder, or any exercise thereof or the exercise of any other right,
power or privilege, nor shall it require any of the Lenders to agree to an
amendment, waiver or consent for a similar transaction on a future occasion, nor
shall any future waiver of any right, power, privilege or default hereunder, or
under any agreement, contract, indenture, document or instrument mentioned in
the Credit Agreement, constitute a waiver of any other right, power, privilege
or default of the same or of any other term or provision.
5.3 Counterparts. This Fifth Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Fifth Amendment shall not
become effective until the Borrowers, the Agent and the Required Lenders shall
have signed a copy hereof, the same shall have been delivered to the Agent and
the conditions set forth in Section 5 hereof shall have been satisfied.
<PAGE>
5.4 Governing Law. This Fifth Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to be duly executed and delivered as of the date first written above.
BERGEN BRUNSWIG DRUG COMPANY
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: V.P. Finance & Treasurer
BERGEN BRUNSWIG CORPORATION
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: V.P. Finance & Treasurer
PHARMERICA, INC.
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: V.P. Finance & Treasurer
BANK OF AMERICA,
NATIONAL ASSOCIATION,
as Agent
By: /s/Gina Meador
Name: Gina Meador
Title: Vice President
By: /s/Vanessa Sheh Meyer
Name:Vanessa Sheh Meyer
Title:Managing Director
BANK OF AMERICA,
NATIONAL ASSOCIATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:/s/Dawn Lee Lum
Name:Dawn Lee Lum
Title:Vice President
PNC BANK, N.A.
By:
Name:
Title:
WACHOVIA BANK, N.A.
By: /s/Eero Maki
Name: Eero Maki
Title:Vice President
<PAGE>
THE BANK OF NEW YORK
By: /s/Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/Anthony D. Braxton
Name:Anthony D. Braxton
Title:Vice President
WELLS FARGO BANK, N.A.
By:/s/Donald A. Hartmann
Name:Donald A. Hartmann
Title:Sr. Vice President
By:/s/Catherine M. Wallace
Name:Catherine M. Wallace
Title:Vice President
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
<PAGE>
THE NORTHERN TRUST COMPANY
By: /s/David J. Mitchell
Name:David J. Mitchell
Title:Vice President
SUNTRUST BANK,
CENTRAL FLORIDA, N.A.
By:/s/Richard A. Anderson, Jr.
Name:Richard A. Anderson, Jr.
Title:Vice President
ABN-AMRO BANK, N.V.,
LOS ANGELES BRANCH
By: /s/ Paul K. Stimpel
Name: Paul K. Stimpel
Title: Group Vice Pres.
By: /s/Sheika Rehman
Name:Sheika Rehman
Title:Vice President
CIBC INC.
By:
Name:
Title:
<PAGE>
UNION BANK OF CALIFORNIA
By: /s/J. Scott Jessup
Name: J. Scott Jessup
Title:Vice President
BANCA DI ROMA
By:/s/Richard G. Dietz
Name:Richard G. Dietz
Title:
By:/s/Thomas C. Woodroff
Name:Thomas C. Woodroff
Title:
MELLON BANK
By:
Name:
Title:
BANCA NAZIONALE DEL
LAVORA S.p.A. - NEW YORK
BRANCH
By:
Name:
Title:
<PAGE>
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is made
and dated as of December 13, 1999 (the "Sixth Amendment") among BERGEN BRUNSWIG
DRUG COMPANY, a California corporation ("Bergen Drug"), BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation (the "Parent"), PHARMERICA, INC., a
Delaware corporation ("PharMerica"; PharMerica, the Parent and Bergen Drug are
collectively called the "Borrowers"), the Lenders party to the Amended and
Restated Credit Agreement referred to below, and BANK OF AMERICA, N.A., a
national banking association, as Agent (the "Agent"), and amends that certain
Amended and Restated Credit Agreement dated as of September 30, 1994, as amended
by that certain First Amendment to Amended and Restated Credit Agreement dated
as of February 27, 1995, by that certain Second Amendment to Amended and
Restated Credit Agreement dated as of March 15, 1996, by that certain Third
Amendment to Amended and Restated Credit Agreement dated as of October 23, 1998,
by that certain Fourth Amendment to Amended and Restated Credit Agreement dated
as of April 23, 1999 and by that certain Fifth Amendment to Amended and Restated
Credit Agreement dated as of September 30, 1999 (as so amended or modified from
time to time, the "Credit Agreement").
RECITALS
WHEREAS, the Borrowers have requested the Agent and the Lenders to
amend the Credit Agreement, and the Agent and the Required Lenders are willing
to do so, on the terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein. All references to the Credit
Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Borrowers, the Agent and the Lenders hereby agree as
follows:
<PAGE>
2.1. Amendments to Schedule I.
(a) The definition of the term "EBIT" in Schedule I to the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"EBIT" means, for any period, consolidated earnings of the Parent and
its Subsidiaries for such period before interest and taxes
(including, without limitation and without duplication, all interest
paid by the Parent under its subordinated debt securities issued to
the Trusts and all payments by the Parent of dividends and
distributions with respect to the Guaranteed Preferred Securities),
before up to $93,000,000 of certain non-cash charges taken by the
Borrower in its Fiscal Quarter ending September 30, 1998, before up to
$53,700,000 of one-time, non-recurring charges taken in its Fiscal
Quarter ending September 30, 1999 in connection with the write-down of
certain accounts receivable, and before up to $50,000,000 of
extraordinary, non-cash charges in any Fiscal Year thereafter
associated with acquisitions.
(b) The definition of the term "Permitted Receivables Transaction" in
Schedule I to the Credit Agreement shall be amended and restated to read in its
entirety as follows:
"Permitted Receivables Transaction" means (i) any agreement of
the Parent or any of its Subsidiaries providing for sales, transfers
or conveyances of receivables purporting to be sales that do not
provide, directly or indirectly, for recourse against the seller of
such receivables (or against any of such seller's Affiliates) by way
of a guaranty or any other support arrangement, with respect to the
collectibility of such receivables (based on the financial condition
or circumstances of the obligor thereunder), other than such limited
recourse as is reasonable given market standards for transactions of a
similar type, taking into account such factors as historical bad debt
loss experience and obligor concentration levels; provided, that the
sum of the net investment of the ultimate purchaser in such
receivables and the amount of Indebtedness outstanding under clause
(ii) hereof does not at any time exceed $400,000,000 or (ii) any
credit facility of the Parent or any of its Subsidiaries that is
secured by receivables of the Parent and its Subsidiaries and the
proceeds thereof; provided, that the sum of the aggregate principal
amount of the Indebtedness so secured and the net investment of the
ultimate purchaser under clause (i) hereof shall not at any time
exceed $400,000,000 and provided, further that the maturity date of
any such credit facility shall not extend beyond January 31, 2000.
2.2. Amendments to Section 7.2.1. Clause (h) of Section 7.2.1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
<PAGE>
(h) Indebtedness in respect of any Permitted Receivables Transaction;
2.3. Amendments to Section 7.2.3. Clause (c) of Section 7.2.3 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(c) its Interest Coverage Ratio on the last day of any Fiscal Quarter
set forth below to be less than the ratio set forth opposite such date:
Date Ratio
December 31, 1999 2.25:1.0
March 31, 2000 2.10:1.0
June 30, 2000 and thereafter 3.0:1.0
3. Representations and Warranties. The Borrowers each represent and
warrant to the Agent and the Lenders that, on and as of the date hereof and as
of the date the conditions set forth in Section 4 hereof shall have been
satisfied, and after giving effect to this Sixth Amendment:
3.1. Authorization. The execution, delivery and performance by
each of the Borrowers of this Sixth Amendment has been duly authorized by all
necessary corporate action by each of them, and this Sixth Amendment has been
duly executed and delivered by the Borrowers.
3.2. Binding Obligation. This Sixth Amendment constitutes the
legal, valid and binding obligations of the Borrowers, enforceable against each
of them respectively in accordance with its terms.
3.3. No Legal Obstacle to Sixth Amendment. The execution,
delivery and performance of this Sixth Amendment will not (a) contravene the
Organic Documents of any of the Borrowers; (b) constitute a breach or default
under any contractual restriction or violate or contravene any law or
governmental regulation or court decree or order binding on or affecting any of
the Borrowers which individually or in the aggregate does or could reasonably be
expected to have a Materially Adverse Effect; or (c) result in, or require the
creation or imposition of, any Lien on any Borrower's properties. No approval or
authorization of any governmental authority or regulatory body or other Person
is required to permit the execution, delivery or performance by the Borrowers of
this Sixth Amendment, or the transactions contemplated hereby.
3.4. Incorporation of Certain Representations. Except for various
class action lawsuits that have been filed against the Parent as a result of the
acquisitions of PharMerica and Stadtlander, the representations and warranties
of the Borrowers set forth in Article VI of the Credit Agreement are true and
<PAGE>
correct in all respects on and as of the date hereof as though made on and as of
the date hereof, except as to such representations made as of an earlier
specified date.
3.5. Default. No Default or Event of Default has occurred and is
continuing.
4. Conditions, Effectiveness. The effectiveness of this Sixth
Amendment shall be subject to the compliance by the Borrowers with their
agreements herein contained, and the following:
4.1. Counterparts. The delivery to the Agent of counterparts of
this Sixth Amendment executed by the Borrowers, the Required Lenders and the
Agent.
4.2. Resolutions, etc. The Agent shall have received from each of
the Borrowers a certificate, dated as of the date hereof, of its Secretary or
Assistant Secretary as to:
(1) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this Agreement and
each other Credit Document to be executed by it; and
(2) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit Document
executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of
each of the Borrowers canceling or amending such prior certificate.
4.3. Amendment Fees. Payment to the Agent, for the pro rata
benefit of each Lender approving this Sixth Amendment on or before 3:00 p.m.,
Eastern Standard Time, on December 13, 1999, of an amendment fee in an amount
equal to .35% of the aggregate amount of the Commitments held by the Lenders
that have executed and delivered this Sixth Amendment by such time; and payment
of all other fees and expenses of the Agent in connection with this Sixth
Amendment (including, without limitation, the fees and expenses of the counsel
to the Agent).
4.4. Other Evidence. The delivery to the Agent of such other
evidence with respect to the Borrowers or any other person as the Agent or any
Lender may reasonably request in connection with this Sixth Amendment and the
compliance with the conditions set forth herein.
5. Miscellaneous.
<PAGE>
5.1. Effectiveness of the Credit Agreement and the Notes. Except
as hereby expressly amended, the Credit Agreement, the Notes and the other
Credit Documents shall each remain in full force and effect, and are hereby
ratified and confirmed in all respects on and as of the date hereof.
5.2. Waivers. This Sixth Amendment is limited solely to the
matters expressly set forth herein and is specific in time and in intent and
does not constitute, nor should it be construed as, a waiver or amendment of any
other term or condition, right, power or privilege under the Credit Agreement or
under any agreement, contract, indenture, document or instrument mentioned
therein; nor does it preclude or prejudice any rights of the Agent or the
Lenders thereunder, or any exercise thereof or the exercise of any other right,
power or privilege, nor shall it require any of the Lenders to agree to an
amendment, waiver or consent for a similar transaction on a future occasion, nor
shall any future waiver of any right, power, privilege or default hereunder, or
under any agreement, contract, indenture, document or instrument mentioned in
the Credit Agreement, constitute a waiver of any other right, power, privilege
or default of the same or of any other term or provision.
5.3. Counterparts. This Sixth Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Sixth Amendment shall not
become effective until the Borrowers, the Agent and the Required Lenders shall
have signed a copy hereof, the same shall have been delivered to the Agent and
the conditions set forth in Section 5 hereof shall have been satisfied.
5.4. Governing Law. This Sixth Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be duly executed and delivered as of the date first written above.
BERGEN BRUNSWIG DRUG COMPANY
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: Vice President
Finance & Treasurer
BERGEN BRUNSWIG CORPORATION
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: Vice President
Finance & Treasurer
BANK OF AMERICA, N.A., as Agent
By: /s/ Gina Meador
Name: Gina Meador
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Vanessa Shen Meyer
Name: Vanessa Shen Meyer
Title: Managing Director
<PAGE>
THE CHASE MANHATTAN BANK
By: /s/ Dawn Lee Lun
Name: Dawn Lee Lun
Title: Vice Presaident
PNC BANK, N.A.
By:
Name:
Title:
WACHOVIA BANK, N.A.
By: /s/ Jessica S. Wright
Name: Jessica S. Wright
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ Mark B. Felker
Name: Mark B. Felker
Title: Senior Vioe President
WELLS FARGO BANK, N.A.
By: /s/ Catherine Wallace /s/Frieda Youlios
Name: Catherine Wallace Frieda Youlios
Title: Vice President Vice President
<PAGE>
TORONTO DOMINION (TEXAS), INC.
By: /s/ Anne C. Favoriti
Name: Anne C. Favoriti
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ David J. Mitchell
Name: David J. Mitchell
Title: Vice President
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By: /s/ John A. Fields
Name: John A. Fields
Title: Vice President
ABN-AMRO BANK, N.V.,
LOS ANGELES BRANCH
By: /s/ Paul K. Stimpel /s/Shika Rehman
Name: Paul K. Stimpel Shika Rehman
Title: Group Vice Pres. Vice President
<PAGE>
CIBC INC.
By: /s/ Gerald Girardi
Name: Gerald Girardi
Title: Executive Director
CIBC World Markets Corp.,
as agent
UNION BANK OF CALIFORNIA
By: /s/ J. Scott Jessup
Name: J. Scott Jessup
Title: Vice President
BANCA DI ROMA
By: /s/ Frances Barolo /s/Thomas C.Woodruff
Name: Frances Barolo Thomas C. Woodruff
Title:
MELLON BANK, N.A.
By: /s/ L. C. Ivey
Name: L. C. Ivey
Title: Vice President
BANCA NAZIONALE DEL LAVORO
S.P.A. - NEW YORK BRANCH
By: /s/ Roberto Mancone /s/Leonardo Valentini
Name: Roberto Mancone Leonardo Valentini
Title: Senior Loan Officer First Vice President
EXHIBIT 10-X
FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is made and dated as of
September 30, 1999 (the "First Amendment") among BERGEN BRUNSWIG DRUG COMPANY, a
California corporation (the "Borrower" or "Bergen Drug"), BERGEN BRUNSWIG
CORPORATION, a New Jersey corporation (the "Parent"), PHARMERICA, INC., a
Delaware corporation ("PharMerica"; PharMerica, the Parent and Bergen Drug are
collectively called the "Borrowers"), the Lenders party to the Amended and
Restated Credit Agreement referred to below, and BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent (the
"Agent"), and amends that certain Credit Agreement dated as of April 23, 1999
(as amended or modified from time to time, the "Credit Agreement").
RECITALS
WHEREAS, the Borrowers have requested the Agent and the Lenders to
amend the Credit Agreement to provide that up to $300,000,000 of receivables may
be sold in a Permitted Receivables Transaction (as defined in the Credit
Agreement), and the Agent and the Required Lenders are willing to do so, on the
terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein. All references to the Credit
Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Borrowers, the Agent and the Lenders hereby agree
that the definition of the term "Permitted Receivables Transaction" in Schedule
I to the Credit Agreement shall be amended and restated to read in its entirety
as follows:
"Permitted Receivables Transaction" means any agreement of the
Parent or any of its Subsidiaries providing for sales, transfers or
conveyances of up to $300,000,000 of receivables purporting to be sales
(and considered sales under GAAP).
3. Representations and Warranties. The Borrowers each represent and
warrant to the Agent and the Lenders that, on and as of the date hereof and as
of the date the conditions set forth in Section 4 hereof shall have been
satisfied, and after giving effect to this First Amendment:
<PAGE>
3.1 Authorization. The execution, delivery and performance by each of
the Borrowers of this First Amendment has been duly authorized by all necessary
corporate action by each of them, and this First Amendment has been duly
executed and delivered by the Borrowers.
3.2 Binding Obligation. This First Amendment constitutes the legal,
valid and binding obligations of the Borrowers, enforceable against each of them
respectively in accordance with its terms.
3.3 No Legal Obstacle to First Amendment. The execution, delivery and
performance of this First Amendment will not (a) contravene the Organic
Documents of any of the Borrowers; (b) constitute a breach or default under any
contractual restriction or violate or contravene any law or governmental
regulation or court decree or order binding on or affecting any of the Borrowers
which individually or in the aggregate does or could reasonably be expected to
have a Materially Adverse Effect; or (c) result in, or require the creation or
imposition of, any Lien on any Borrower's properties. No approval or
authorization of any governmental authority or regulatory body or other Person
is required to permit the execution, delivery or performance by the Borrowers of
this First Amendment, or the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The representations and
warranties of the Borrowers set forth in Article VI of the Credit Agreement are
true and correct in all respects on and as of the date hereof as though made on
and as of the date hereof, except as to such representations made as of an
earlier specified date.
3.5 Default. No Default or Event of Default has occurred and is
continuing.
4. Conditions, Effectiveness. The effectiveness of this First
Amendment shall be subject to the compliance by the Borrowers with their
agreements herein contained, and the following:
4.1 Counterparts. The delivery to the Agent of counterparts of this
First Amendment executed by the Borrowers, the Required Lenders and the Agent.
4.2 Resolutions, etc. The Agent shall have received from each of the
Borrowers a certificate, dated as of the date hereof, of its Secretary or
Assistant Secretary as to:
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement and each other Credit Document to be executed by it; and
<PAGE>
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of
each of the Borrowers canceling or amending such prior certificate.
4.3 Other Evidence. The delivery to the Agent of such other evidence
with respect to the Borrowers or any other person as the Agent or any Lender may
reasonably request in connection with this First Amendment and the compliance
with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Credit Agreement and the Notes. Except as
hereby expressly amended, the Credit Agreement, the Notes and the other Credit
Documents shall each remain in full force and effect, and are hereby ratified
and confirmed in all respects on and as of the date hereof.
5.2 Waivers. This First Amendment is limited solely to the matters
expressly set forth herein and is specific in time and in intent and does not
constitute, nor should it be construed as, a waiver or amendment of any other
term or condition, right, power or privilege under the Credit Agreement or under
any agreement, contract, indenture, document or instrument mentioned therein;
nor does it preclude or prejudice any rights of the Agent or the Lenders
thereunder, or any exercise thereof or the exercise of any other right, power or
privilege, nor shall it require any of the Lenders to agree to an amendment,
waiver or consent for a similar transaction on a future occasion, nor shall any
future waiver of any right, power, privilege or default hereunder, or under any
agreement, contract, indenture, document or instrument mentioned in the Credit
Agreement, constitute a waiver of any other right, power, privilege or default
of the same or of any other term or provision.
5.3 Counterparts. This First Amendment may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This First Amendment shall not become
effective until the Borrowers, the Agent and the Required Lenders shall have
signed a copy hereof, the same shall have been delivered to the Agent and the
conditions set forth in Section 5 hereof shall have been satisfied.
5.4 Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered as of the date first written above.
BERGEN BRUNSWIG DRUG COMPANY
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: V.P. Finance & Treasurer
BERGEN BRUNSWIG CORPORATION
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: V.P. Finance & Treasurer
PHARMERICA, INC.
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: V.P. Finance & Treasurer
BANK OF AMERICA,
NATIONAL ASSOCIATION,
as Administrative Agent
By:/s/Gina Meador
Name:Gina Meador
Title:Vice President
By: /s/Vanessa Sheh Meyer
Name:Vanessa Sheh Meyer
Title:Managing Director
<PAGE>
BANK OF AMERICA,
NATIONAL ASSOCIATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:/s/Dawn Lee Lum
Name:Dawn Lee Lum
Title:Vice President
WACHOVIA BANK, N.A.
By:/s/Eero Maki
Name:Eero Maki
Title:Vice President
ABN AMRO BANK N.V.
By: /s/Paul K. Stimpel
Name:Paul K. Stimpel
Title:Group Vice President
By: /s/Shikha Rehman
Name:Shikha Rehman
Title:Vice President
BANK OF MONTREAL
By:
Name:
Title:
<PAGE>
FIRST UNION NATIONAL BANK
By:/s/Anthony D. Braxton
Name:Anthony D. Braxton
Title:Vice President
BANCA NAZIONALE DEL
LAVORO S.p.A. - NEW YORK
BRANCH
By:
Name:
Title:
BANCA POPULAR DE PUERTO RICO
By:
Name:
Title:
BANK OF HAWAII
By: /s/Scott R. Nahme
Name:Scott R. Nahme
Title:Vice President
THE BANK OF NEW YORK
By:/s/Rebecca K. Levine
Name:Rebecca K. Levina
Title:Vice President
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/R.P. Reynolds
Name:R.P. Reynolds
Title:Relationship Manager
FLEET NATIONAL BANK
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By:
Name:
Title:
<PAGE>
THE NORTHERN TRUST COMPANY
By:/s/ David J. Mitchell
Name:David J. Mitchell
Title:Vice President
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By:/s/Richard A. Anderson, Jr.
Name:Richard A. Anderson, Jr.
Title:Vice President
WELLS FARGO BANK, N.A.
By:/s/Donald A. Hartmann
Name:Donald A. Hartmann
Title:Sr. Vice President
By:/s/Catherine M. Wallace
Name:Catherine M. Wallace
Title:Vice President
THE FIFTH THIRD BANK
By:/s/Megan S. Heisel
Name:Megan S. Heisel
Title:Asst. Cashier
BANCA DI ROMA-SAN FRANCISCO
By:/s/Richard G. Dietz
Name:Richard G. Dietz
Title:
By:/s/Thomas C. Woodruff
Name:Thomas C. Woodruff
Title:
<PAGE>
VIA BANQUE
By:
Name:
Title:
<PAGE>
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT is made and dated as of
December 13, 1999 (the "Second Amendment") among BERGEN BRUNSWIG DRUG COMPANY, a
California corporation ("Bergen Drug"), BERGEN BRUNSWIG CORPORATION, a New
Jersey corporation (the "Parent"), PHARMERICA, INC., a Delaware corporation
("PharMerica"; PharMerica, the Parent and Bergen Drug are collectively called
the "Borrowers"), the Lenders party to the Credit Agreement referred to below,
and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent (the "Agent"), and amends that certain Credit Agreement
dated as of April 23, 1999, as amended by that certain First Amendment to Credit
Agreement dated as of September 30, 1999 (as so amended or modified from time to
time, the "Credit Agreement").
RECITALS
WHEREAS, the Borrowers have requested the Agent and the Lenders to
amend the Credit Agreement, and the Agent and the Required Lenders are willing
to do so, on the terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein. All references to the Credit
Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Borrowers, the Agent and the Lenders hereby agree as
follows:
2.1. Amendments to Schedule I.
(a) The definition of the term "EBIT" in Schedule I to the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"EBIT" means, for any period, consolidated earnings of the Parent
and its Subsidiaries for such period before interest and taxes (including,
without limitation and without duplication, all interest paid by the Parent
under its subordinated debt securities issued to the Trusts and all
payments by the Parent of dividends and distributions with respect to the
Guaranteed Preferred Securities), before up to $93,000,000 of certain
<PAGE>
non-cash charges taken by the Borrower in its Fiscal Quarter ending
September 30, 1998, before up to $53,700,000 of one-time, non-recurring
charges taken in its Fiscal Quarter ending September 30, 1999 in connection
with the write-down of certain accounts receivable, and before up to
$50,000,000 of extraordinary, non-cash charges in any Fiscal Year
thereafter associated with acquisitions.
(b) The definition of the term "Permitted Receivables Transaction" in
Schedule I to the Credit Agreement shall be amended and restated to read in its
entirety as follows:
"Permitted Receivables Transaction" means (i) any agreement of
the Parent or any of its Subsidiaries providing for sales, transfers or
conveyances of receivables purporting to be sales that do not provide,
directly or indirectly, for recourse against the seller of such receivables
(or against any of such seller's Affiliates) by way of a guaranty or any
other support arrangement, with respect to the collectibility of such
receivables (based on the financial condition or circumstances of the
obligor thereunder), other than such limited recourse as is reasonable
given market standards for transactions of a similar type, taking into
account such factors as historical bad debt loss experience and obligor
concentration levels; provided, that the sum of the net investment of the
ultimate purchaser in such receivables and the amount of Indebtedness
outstanding under clause (ii) hereof does not at any time exceed
$400,000,000 or (ii) any credit facility of the Parent or any of its
Subsidiaries that is secured by receivables of the Parent and its
Subsidiaries and the proceeds thereof; provided, that the sum of the
aggregate principal amount of the Indebtedness so secured and the net
investment of the ultimate purchaser under clause (i) hereof shall not at
any time exceed $400,000,000 and provided, further that the maturity date
of any such credit facility shall not extend beyond January 31, 2000.
2.2. Amendments to Section 7.2.1. Clause (h) of Section 7.2.1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(h) Indebtedness in respect of any Permitted Receivables
Transaction;
2.3. Amendments to Section 7.2.3. Clause (c) of Section 7.2.3 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(c) its Interest Coverage Ratio on the last day of any Fiscal Quarter
set forth below to be less than the ratio set forth opposite such date:
Date Ratio
December 31, 1999 2.25:1.0
March 31, 2000 2.10:1.0
June 30, 2000 and thereafter 3.0:1.0
<PAGE>
3. Representations and Warranties. The Borrowers each represent and
warrant to the Agent and the Lenders that, on and as of the date hereof and as
of the date the conditions set forth in Section 4 hereof shall have been
satisfied, and after giving effect to this Second Amendment:
3.1. Authorization. The execution, delivery and performance by each of
the Borrowers of this Second Amendment has been duly authorized by all necessary
corporate action by each of them, and this Second Amendment has been duly
executed and delivered by the Borrowers.
3.2. Binding Obligation. This Second Amendment constitutes the legal,
valid and binding obligations of the Borrowers, enforceable against each of them
respectively in accordance with its terms.
3.3. No Legal Obstacle to Second Amendment. The execution, delivery
and performance of this Second Amendment will not (a) contravene the Organic
Documents of any of the Borrowers; (b) constitute a breach or default under any
contractual restriction or violate or contravene any law or governmental
regulation or court decree or order binding on or affecting any of the Borrowers
which individually or in the aggregate does or could reasonably be expected to
have a Materially Adverse Effect; or (c) result in, or require the creation or
imposition of, any Lien on any Borrower's properties. No approval or
authorization of any governmental authority or regulatory body or other Person
is required to permit the execution, delivery or performance by the Borrowers of
this Second Amendment, or the transactions contemplated hereby.
3.4. Incorporation of Certain Representations. The representations and
warranties of the Borrowers set forth in Article VI of the Credit Agreement are
true and correct in all respects on and as of the date hereof as though made on
and as of the date hereof, except as to such representations made as of an
earlier specified date.
3.5. Default. No Default or Event of Default has occurred and is
continuing.
4. Conditions, Effectiveness. The effectiveness of this Second
Amendment shall be subject to the compliance by the Borrowers with their
agreements herein contained, and the following:
4.1. Counterparts. The delivery to the Agent of counterparts of this
Second Amendment executed by the Borrowers, the Required Lenders and the Agent.
<PAGE>
4.2. Resolutions, etc. The Agent shall have received from each of the
Borrowers a certificate, dated as of the date hereof, of its Secretary or
Assistant Secretary as to:
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement and each other Credit Document to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of
each of the Borrowers canceling or amending such prior certificate.
4.3. Amendment Fees. Payment to the Agent, for the pro rata benefit of
each Lender approving this Second Amendment on or before 3:00 p.m., Eastern
Standard Time, on December 13, 1999, of an amendment fee in an amount equal to
.35% of the aggregate amount of the Commitments held by the Lenders that have
executed and delivered this Second Amendment by such time; and payment of all
other fees and expenses of the Agent in connection with this Second Amendment
(including, without limitation, the fees and expenses of the counsel to the
Agent).
4.4. Other Evidence. The delivery to the Agent of such other evidence
with respect to the Borrowers or any other person as the Agent or any Lender may
reasonably request in connection with this Second Amendment and the compliance
with the conditions set forth herein.
5. Miscellaneous.
5.1. Effectiveness of the Credit Agreement and the Notes. Except as
hereby expressly amended, the Credit Agreement, the Notes and the other Credit
Documents shall each remain in full force and effect, and are hereby ratified
and confirmed in all respects on and as of the date hereof.
5.2. Waivers. This Second Amendment is limited solely to the matters
expressly set forth herein and is specific in time and in intent and does not
constitute, nor should it be construed as, a waiver or amendment of any other
term or condition, right, power or privilege under the Credit Agreement or under
any agreement, contract, indenture, document or instrument mentioned therein;
nor does it preclude or prejudice any rights of the Agent or the Lenders
thereunder, or any exercise thereof or the exercise of any other right, power or
privilege, nor shall it require any of the Lenders to agree to an amendment,
waiver or consent for a similar transaction on a future occasion, nor shall any
<PAGE>
future waiver of any right, power, privilege or default hereunder, or under any
agreement, contract, indenture, document or instrument mentioned in the Credit
Agreement, constitute a waiver of any other right, power, privilege or default
of the same or of any other term or provision.
5.3. Counterparts. This Second Amendment may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This Second Amendment shall not become
effective until the Borrowers, the Agent and the Required Lenders shall have
signed a copy hereof, the same shall have been delivered to the Agent and the
conditions set forth in Section 5 hereof shall have been satisfied.
5.4. Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered as of the date first written above.
BERGEN BRUNSWIG DRUG COMPANY
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: Vice President Finance &
Treasurer
BERGEN BRUNSWIG CORPORATION
By: /s/ Eric J. Schmitt
Name: Eric J. Schmitt
Title: Vice President Finance &
Treasurer
PHARMERICA, INC.
By: /s/ Milan A. Sawdei
Name: Milan A. Sawdei
Title: Executive Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative
Agent
By: /s/ Gina Meador
Name: Gina Meador
Title: Vice President
<PAGE>
BANK OF AMERICA, NATIONAL
ASSOCIATION
By: /s/ Vanessa Shen Meyer
Name: Vanessa Shen Meyer
Title: Managing Director
THE CHASE MANHATTAN BANK
By: /s/ Dawn Lee Lun
Name: Dawn Lee Lun
Title: Vice Presaident
WACHOVIA BANK, N.A.
By: /s/ Jessica S. Wright
Name: Jessica S. Wright
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Paul K. Stimpel /s/ Shika Rehman
Name: Paul K. Stimpel Shika Rehman
Title: Group Vice Pres. Vice Pres.
<PAGE>
BANK OF MONTREAL
By: /s/ Michael B. Joyce
Name: Michael B. Joyce
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Mark B. Felker
Name: Mark B. Felker
Title: Senior Vioe President
BANCA NAZIONALE DEL LAVORO
S.P.A. - NEW YORK BRANCH
By: /s/ Roberto Mancone /s/ Leonardo Valentini
Name: Roberto Mancone Leonardo Valentini
Title: Senior Loan Officer First Vice President
BANCA POPULAR DE PUERTO RICO
By: /s/ Maria Fuentes
Name: Maria Fuentes
Title: Senior Vice President
<PAGE>
BANK OF HAWAII
By: /s/Scott R. Nahme
Name: Scott R. Nahme
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Carol Paige Castle
Name: Carol Paige Castle
Title: Senior Vice President
<PAGE>
MELLON BANK, N.A.
By: /s/ L. C. Ivey
Name: L. C. Ivey
Title: Vice President
NATIONAL CITY BANK OF
PENNSYLVANIA
By: /s/ David G. Arampa
Name: David G. Arampa
Title: Vice President and
Regional Manager
THE NORTHERN TRUST COMPANY
By: /s/ David J. Mitchell
Name: David J. Mitchell
Title: Vice President
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By: /s/ John A. Fields
Name: John A. Fields
Title: Vice President
<PAGE>
WELLS FARGO BANK, N.A.
By: /s/ Catherine Wallace /s/ Frieda Youlios
Name: Catherine Wallace Frieda Youlios
Title: Vice President Vice President
THE FIFTH THIRD BANK
By: /s/ Megan Heisel
Name: Megan Heisel
Title: Assistant Cashier
BANCA DI ROMA-SAN FRANCISCO
By: /s/ Frances Barolo /s/ Thomas C. Woodruff
Name: Frances Barolo Thomas C. Woodruff
Title:
VIA BANQUE
By: /s/ C. Prot /s/ J.F. Vitte
Name: C. Prot J.F. Vitte
Title:
EXHIBIT 10-Y
================================================================================
Receivables Sale Agreement
Dated as of December 17, 1999
among
Blue Hill, Inc.,
as the Seller,
Bergen Brunswig Drug Company,
as the Initial Collection Agent,
Wachovia Bank, N.A.,
as the Agent and as
the Blue Ridge Purchaser Agent,
The Related Bank Purchasers
from time to time party hereto,
Blue Ridge Asset Funding Corporation,
as a Conduit Purchaser
and
the other Conduit Purchasers
from time to time party hereto
================================================================================
Table of Contents
Page
ARTICLE I PURCHASES FROM SELLER AND SETTLEMENTS 1
Section 1.1. Sales 1
Section 1.2. Interim Liquidations 3
Section 1.3. Selection of Discount Rates and Tranche
Period for each Purchaser Group 4
Section 1.4. Fees and Other Costs and Expenses 5
Section 1.5. Maintenance of Sold Interest; Deemed Collection 5
Section 1.6. Reduction in Commitments 6
Section 1.7. Optional Repurchases 6
Section 1.8. Assignment of Purchase Agreement 6
ARTICLE II SALES TO AND FROM CONDUIT PURCHASERS; ALLOCATIONS 7
Section 2.1. Purchases from a Conduit Purchaser 7
Section 2.2. Purchases by a Conduit Purchaser 8
Section 2.3. Allocations and Distributions 8
ARTICLE III ADMINISTRATION AND COLLECTIONS 9
Section 3.1. Appointment of Collection Agent 9
Section 3.2. Duties of Collection Agent 10
Section 3.3. Reports 11
Section 3.4. Lock-Box and Depositary Account Arrangements 11
Section 3.5. Enforcement Rights 11
Section 3.6. Collection Agent Fee 12
Section 3.7. Responsibilities of the Seller 12
Section 3.8. Actions by Seller 13
Section 3.9. Indemnities by the Collection Agent 13
ARTICLE IV REPRESENTATIONS AND WARRANTIES 14
Section 4.1. Representations and Warranties of the Seller 14
Section 4.2. Representations and Warranties of
the Collection Agent 16
ARTICLE V COVENANTS 17
Section 5.1. Covenants of the Seller 17
ARTICLE VI INDEMNIFICATION 22
Section 6.1. Indemnities by the Seller 22
Section 6.2. Increased Cost and Reduced Return 23
Section 6.3. Other Costs and Expenses 24
Section 6.4. Withholding Taxes 25
Section 6.5. Payments and Allocations 25
ARTICLE VII CONDITIONS PRECEDENT 25
Section 7.1. Conditions to Closing 25
Section 7.2. Conditions to Each Purchase 26
ARTICLE VIII THE AGENT 27
Section 8.1. Appointment and Authorization 27
Section 8.2. Delegation of Duties 28
Section 8.3. Exculpatory Provisions 28
Section 8.4. Reliance by Agent 28
Section 8.5. Assumed Payments 29
Section 8.6. Notice of Termination Events 30
Section 8.7. Non-Reliance on Agent, Purchaser Agents
and Other Purchasers 30
Section 8.8. Agent and Affiliates 30
Section 8.9. Indemnification 31
Section 8.10 Successor Agent 31
ARTICLE IX MISCELLANEOUS 31
Section 9.1. Termination 31
Section 9.2. Notices 32
Section 9.3. Payments and Computations 32
Section 9.4. Sharing of Recoveries 32
Section 9.5. Right of Setoff 33
Section 9.6. Amendments 33
Section 9.7. Waivers 34
Section 9.8. Successors and Assigns; Participations; Assignments 34
Section 9.9. Intended Tax Characterization 35
Section 9.10. Confidentiality 36
Section 9.11. Agreement Not to Petition 36
Section 9.12. Excess Funds 36
Section 9.13. No Recourse 37
Section 9.14. Headings; Counterparts 37
Section 9.15. Cumulative Rights and Severability 37
Section 9.16. Governing Law; Submission to Jurisdiction 37
Section 9.17. WAIVER OF TRIAL BY JURY 38
Section 9.18. Entire Agreement 38
<PAGE>
Schedules Description
Schedule I Definitions
Schedule II Related Bank Purchasers and Purchase Commitments of
Related Bank Purchasers and Purchaser Groups
Exhibits Description
Exhibit A Form of Incremental Purchase Request
Exhibit B Form of Notification of Assignment from a Conduit
Purchaser to the Related Bank Purchasers
Exhibit C Form of Periodic Report
Exhibit D Addresses and Names of Seller and Originator
Exhibit E Subsidiaries
Exhibit F Lock-Boxes, Lock-Box Banks and Depositary Banks
Exhibit G-1 Form of Lock-Box Letter
Exhibit G-2 Form of Depositary Account Letter
Exhibit H Compliance Certificate
Exhibit I Credit and Collection Policy
<PAGE>
Receivables Sale Agreement
Receivables Sale Agreement, dated as of December 17, 1999, among Blue
Hill, Inc., a Delaware corporation, as Seller (the "Seller"), Bergen Brunswig
Drug Company, a California corporation, as initial Collection Agent (the
"Initial Collection Agent," and, together with any successor thereto, the
"Collection Agent"), Wachovia Bank, N.A. as the Blue Ridge Purchaser Agent and
as administrative agent for the Purchasers (the "Agent"), the Related Bank
Purchasers from time to time party hereto, Blue Ridge Asset Funding Corporation,
as a Conduit Purchaser ("Blue Ridge") and the other Conduit Purchasers from time
to time party hereto. Certain capitalized terms used herein, and certain rules
of construction, are defined in Schedule I. The Related Bank Purchasers and
their Commitments are listed on Schedule II.
The parties hereto agree as follows:
Article I
Purchases from Seller and Settlements
Section 1.1. Sales.
(a) The Sold Interest. Subject to the terms and conditions hereof, the
Seller may, from time to time before the Termination Date, request that the
Conduit Purchasers (or, only if a Conduit Purchaser denies such request or is
unable to fund, ratably request that the Related Bank Purchasers make purchases
of an undivided percentage ownership interest in the Receivables, the Related
Security and all related Collections. Upon any such request, subject to the
terms and conditions of this Agreement, the Conduit Purchasers may, in their
sole discretion, purchase such interest, or, if any such Conduit Purchaser
decides not to purchase such interest, the Related Bank Purchasers for such
Conduit Purchaser shall purchase such interest. Such interest shall be
transferred to the Agent, on behalf of each Purchaser Agent as representative of
the applicable Conduit Purchaser or Related Bank Purchaser, as the case may be.
Any such purchase (a "Purchase") shall be made by each relevant Purchaser
remitting funds to the Seller pursuant to Section 1.1(c) or by the Collection
Agent remitting Collections to the Seller pursuant to Section 1.1(d). The
aggregate percentage ownership interest so acquired by a Purchaser in the
Receivables, the Related Security and related Collections (its "Purchase
Interest") shall equal at any time the following quotient:
I + PRP
NRB
where:
I = the outstanding Investment of such Purchaser at such time;
NRB = the Net Receivables Balance at such time; and
<PAGE>
PRP = the Purchaser Reserve Percentage at such time.
Except during a Liquidation Period for a Purchaser, such Purchaser's Purchase
Interest will change whenever its Investment, its Purchaser Reserve Percentage
or the Net Receivables Balance changes. During a Liquidation Period for a
Purchaser its Purchase Interest shall remain constant, except for
redeterminations to reflect Investment acquired from or transferred to a
Purchaser under Article II or pursuant to a Transfer Agreement. The sum of all
Purchasers' Purchase Interests at any time is referred to herein as the "Sold
Interest", which at any time is the aggregate percentage ownership interest then
held by the Purchasers in the Receivables, the Related Security and Collections.
(b) Conduit Purchaser Purchase Option and Committed Purchaser
Commitments. Subject to Section 1.1(d) concerning Reinvestment Purchases, at no
time will a Conduit Purchaser have any obligation to make a Purchase. Each
Related Bank Purchaser severally hereby agrees, subject to Section 7.2 and the
other terms and conditions hereof, to make Purchases before the Termination
Date, based on the applicable Purchaser Group's Ratable Share of each Purchase
by (and, in the case of each Related Bank Purchaser, its Commitment Percentage
of its Purchaser Group's Ratable Share of such Purchase), to the extent its
Investment would not thereby exceed its Commitment, the Aggregate Investment
would not thereby exceed the Purchase Limit, and the Matured Aggregate
Investment would not thereby exceed the Aggregate Commitments. Each Purchaser's
first Purchase and each additional Purchase by such Purchaser not made from
Collections pursuant to Section 1.1(d) is referred to herein as an "Incremental
Purchase." Each Purchase made by a Purchaser with the proceeds of Collections in
which it has a Purchase Interest, which does not increase the outstanding
Investment of such Purchaser, is referred to herein as a "Reinvestment
Purchase." All Purchases hereunder shall be made ratably by such Purchaser Group
in accordance with the Commitment of such Purchaser Group.
(c) Incremental Purchases. In order to request an Incremental Purchase
from a Purchaser, the Seller must provide to the Agent and each Purchaser Agent
an irrevocable written request (including by telecopier or other facsimile
communication) substantially in the form of Exhibit A, by 11:00 a.m. (Atlanta
time) two Business Days before the requested date (the "Purchase Date") of such
Purchase, specifying the requested Purchase Date (which must be a Business Day)
and the requested amount (the "Purchase Amount") of such Purchase, which must be
in a minimum amount of $1,000,000 and multiples thereof (or, if less, an amount
equal to the Maximum Incremental Purchase Amount). All Incremental Purchases may
only be requested ratably from the Conduit Purchasers in each Purchaser Group
unless, a Conduit Purchaser, in its sole discretion, determines not to make its
Ratable Share of such Incremental Purchase (which determination shall be made
within one Business Day after the Seller's request for an Incremental Purchase),
in which case the Seller may request such Incremental Purchase from the Related
Bank Purchasers for such Conduit Purchaser. Each Purchaser Agent shall promptly
notify the related Purchasers from which a Purchase is requested of the contents
of such request. If the Ratable Share of an Incremental Purchase requested from
a Conduit Purchaser and such Conduit Purchaser determines, in its sole
discretion, to make the requested Purchase, such Conduit Purchaser shall
transfer to the Seller's Account its Ratable Share amount of such Incremental
Purchase by no later than 1:00 p.m. (Atlanta time) on the Purchase Date. If a
<PAGE>
Conduit Purchaser refuses to make a requested Purchase and the Seller requests
the Incremental Purchase from the Related Bank Purchasers for such Conduit
Purchaser three Business Days before such requested Purchase, subject to
Section 7.2 and the other terms and conditions hereof, each Related Bank
Purchaser shall transfer its Commitment Percentage of its Purchaser Group's
Ratable Share of such Purchase into the Seller's Account by no later than 1:00
p.m. (Atlanta time) on the Purchase Date (which in no event will be earlier than
three Business Days after such request is made to the Committed Purchasers).
(d) Reinvestment Purchases. Unless a Conduit Purchaser has provided to
the Agent, each Purchaser Agent, the Seller, and the Collection Agent a notice
(which notice has not been revoked) that it no longer wishes to make
Reinvestment Purchases (in which case such Conduit Purchaser's Reinvestment
Purchases, but not those of its Related Bank Purchasers, shall cease), on each
day before the Termination Date that any Collections are received by the
Collection Agent and no Interim Liquidation is in effect, a Purchaser's Purchase
Interest in such Collections shall automatically be used to make a Reinvestment
Purchase by such Purchaser. A Conduit Purchaser may revoke any notice provided
under the first sentence of this Section 1.1(d) by notifying the Agent, its
Purchaser Agent, the Seller, and the Collection Agent that it will make
Reinvestment Purchases.
(e) Security Interest. To secure all of the Seller's obligations under
the Transaction Documents, the Seller hereby grants to the Agent (for the
benefit of the Purchasers and any other Person to whom any amount is owed
hereunder) a security interest in all of the Seller's rights (if any) in the
Receivables, the Related Security, the Collections, and the Lock- Box Accounts
and all proceeds of the foregoing.
Section 1.2. Interim Liquidations.
(a) Optional. The Seller may at any time direct that Reinvestment
Purchases cease and that an Interim Liquidation commence for all Purchasers by
giving the Agent, each Purchaser Agent and the Collection Agent at least three
Business Days' prior written (including telecopy or other facsimile
communication) notice specifying the date on which the Interim Liquidation shall
commence and, if desired, when such Interim Liquidation shall cease (identified
as a specific date prior to the Termination Date or as when the Aggregate
Investment is reduced to a specified amount). If the Seller does not so specify
the date on which an Interim Liquidation shall cease, it may cause such Interim
Liquidation to cease at any time before the Termination Date, subject to
Section 1.2(b) below, by notifying the Agent, each Purchaser Agent and the
Collection Agent in writing (including by telecopy or other facsimile
communication) at least three Business Days before the date on which it desires
such Interim Liquidation to cease.
(b) Mandatory. If at any time before the Termination Date any
condition in Section 7.2 is not fulfilled, the Seller shall immediately notify
the Agent, each Purchaser Agent and the Collection Agent, whereupon Reinvestment
Purchases shall cease and an Interim Liquidation shall commence, which shall
cease only upon the Seller confirming to the Agent that the conditions in
Section 7.2 are fulfilled.
<PAGE>
Section 1.3. Selection of Discount Rates and Tranche Periods for each
Purchaser Group.
(a) Blue Ridge. All Investment of Blue Ridge shall be allocated to one
or more Tranche Periods reflecting the Discount Rates at which such Investment
accrues Discount and the Tranche Periods for which such Discount Rates apply
selected by the Blue Ridge Purchaser Agent as provided below. All Investment of
Blue Ridge shall accrue Discount at the CP Rate applicable to Blue Ridge. All CP
Discount accrued during a Tranche Period on the Investment of Blue Ridge shall
be payable by the Seller on the last day of such Tranche Period.
(b) Other Conduit Purchasers. All Investment of Conduit Purchasers
shall be allocated to Tranche Periods reflecting the Discount Rates at which
such Investment accrues Discount and the Tranche Periods for which such Discount
Rates apply selected by the Purchaser Agent for such Conduit Purchaser as
provided below. All Investment of such Conduit Purchasers shall accrue Discount
at the CP Rate applicable to such Conduit Purchasers. All CP Discount accrued
during a Tranche Period for such Conduit Purchasers shall be payable on the
dates specified in the Rate Supplement for the relevant Purchaser Group.
(c) Committed Purchasers. All Investment of the Committed Purchasers
shall be allocated to one or more Tranches reflecting the Discount Rates at
which such Investment accrues Discount and the Tranche Periods for which such
Discount Rates apply. In each request for an Incremental Purchase from a
Committed Purchaser and three Business Days before the expiration of any Tranche
Period applicable to any Committed Purchaser's Investment, the Seller may
request the Tranche Period(s) to be applicable to such Investment and the
Discount Rate(s) applicable thereto. All Investment of the Committed Purchasers
may accrue Discount at either the Eurodollar Rate or the Prime Rate, in all
cases as established for each Tranche Period applicable to such Investment. Any
Investment of the Committed Purchasers not allocated to a Tranche Period shall
be a Prime Tranche. During the pendency of a Termination Event, the applicable
Purchaser Agent, upon notice to all other Purchaser Agents, may reallocate any
outstanding Investment of the related Committed Purchasers to a Prime Tranche.
All Discount accrued on the Investment of the Committed Purchasers during a
Tranche Period shall be payable by the Seller on the last day of such Tranche
Period or, for a Eurodollar Tranche with a Tranche Period of more than three
months, 90 days after the commencement, and on the last day, of such Tranche
Period.
(d) The relevant Purchaser Agent shall allocate the Investment of the
related Conduit Purchaser to Tranche Periods in its sole discretion. If, by the
time required in Section 1.3(c), the Seller fails to select a Discount Rate or
Tranche Period for any Investment of the Committed Purchasers, such amount of
Investment shall automatically accrue Discount at the Prime Rate for a three
Business Day Tranche Period. Any Investment purchased from a Conduit Purchaser
pursuant to the relevant Transfer Agreement shall accrue interest at the Prime
Rate and have an initial Tranche Period of three Business Days.
(e) If any Committed Purchaser determines (i) that maintenance of any
Eurodollar Tranche would violate any applicable law or regulation, (ii) that
deposits of a type and maturity appropriate to match fund any of such Committed
Purchaser's Eurodollar Tranches are not available or (iii) that the maintenance
<PAGE>
of any Eurodollar Tranche will not adequately and fairly reflect the cost of
such Purchaser of funding Eurodollar Tranches, then the applicable Purchaser
Agent, upon the direction of such Committed Purchaser, shall suspend the
availability of, and terminate any outstanding, Eurodollar Tranche so affected.
All Investment allocated to any such terminated Eurodollar Tranche shall be
reallocated to a Prime Tranche.
Section 1.4. Fees and Other Costs and Expenses. (a) Each Purchaser
Agent shall receive from the Seller for the ratable benefit of its Purchaser
Group such amounts as agreed to with the Purchaser in the Fee Letter for such
Purchaser Group.
(b) If (i) with respect to any Investment of any Purchaser Group, the
amount of such Purchaser Group's Investment is reduced on any date other than
the last day of a CP Tranche, (ii) the amount of Investment allocated to any
Eurodollar Tranche is reduced before the last day of its Tranche Period or (iii)
if a requested Incremental Purchase at the Eurodollar Rate does not take place
on its scheduled Purchase Date, the Seller shall pay the Early Payment Fee to
each Purchaser in the applicable Purchaser Group that had its Investment so
reduced or scheduled Purchase not made; provided, however, no Early Payment Fee
will be due by the Seller if the amount of Investment allocated to any
Eurodollar Tranche is reduced before the last day of its Tranche Period pursuant
to Section 1.3(e)(iii) hereof.
(c) Investment shall be payable solely from Collections and from
amounts payable under Sections 1.5, 1.7 and 6.1 (to the extent amounts paid
under Section 6.1 indemnify against reductions in or non-payment of
Receivables). The Seller shall pay, as a full recourse obligation, all amounts
payable pursuant to Sections 1.5, 1.7 and 6.1 and all other amounts payable
hereunder and under the Fee Letter, including all Discount, fees described in
clauses (a) and (b) above and amounts payable under Article VI.
Section 1.5. Maintenance of Sold Interest; Deemed Collection.
(a) General. If at any time before the Termination Date the Net
Receivables Balance is less than the sum of the Aggregate Investment (or, if a
Termination Event exists, the Matured Aggregate Investment) plus the Aggregate
Reserve, the Seller shall pay to the Agent on the next succeeding Settlement
Date following such imbalance an amount equal to such deficiency for application
to reduce the Investments of the Purchasers ratably in accordance with the
principal amount of their respective Investments, applied first to Prime
Tranches and second to the other Tranches with the shortest remaining maturities
unless otherwise specified by the Seller. Any amount so applied to reduce a
Conduit Purchaser's Investment shall be deposited into an account designated by
the Purchaser Agent for the relevant Purchaser Group.
(b) Deemed Collections. If on any day the outstanding balance of a
Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) or other similar reason not
arising from the financial inability of the Obligor to pay undisputed
indebtedness, the Seller shall be deemed to have received on such day a
Collection on such Receivable in the amount of such reduction or cancellation
<PAGE>
and the remaining balance, if any, of such Receivable shall continue to be an
Eligible Receivable. If on any day any representation, warranty, covenant or
other agreement of the Seller related to a Receivable is not true or is not
satisfied, the Seller shall be deemed to have received on such day a Collection
in the amount of the outstanding balance of such Receivable. All such
Collections deemed received by the Seller under this Section 1.5(b) shall be
remitted by the Seller on the next succeeding Settlement Date to the Collection
Agent in accordance with Section 5.1(i).
(c) Adjustment to Sold Interest. At any time before the Termination
Date that the Seller is deemed to have received any Collection under
Section 1.5(b) ("Deemed Collections") that derive from a Receivable that is
otherwise reported as an Eligible Receivable, so long as no Liquidation Period
then exists (unless such Liquidation Period only applies to a Conduit Purchaser
pursuant to Section 1.1(d) hereof), the Seller may satisfy its obligation to
deliver such amount to the Collection Agent by instead notifying the Agent and
the Purchaser Agents that the Sold Interest should be recalculated by decreasing
the Net Receivables Balance by the amount of such Deemed Collections, so long as
such adjustment does not cause the Sold Interest to exceed 100%.
(d) Payment Assumption. Unless an Obligor otherwise specifies or
another application is required by contract or law, any payment received by the
Seller from any Obligor in respect of any Receivable shall be applied as a
Collection of Receivables of such Obligor (starting with the oldest such
Receivable) and remitted to the Collection Agent as such.
Section 1.6. Reduction in Commitments. The Seller may, upon thirty
days' notice to the Agent and each Purchaser Agent, reduce the Aggregate
Commitment in increments of $1,000,000, so long as the Aggregate Commitment as
so reduced equals at least the outstanding Matured Aggregate Investment. Each
such reduction in the Aggregate Commitment shall reduce the Commitment of each
Committed Purchaser in accordance with its Ratable Share and shall ratably
reduce the Purchase Limit so that the Aggregate Commitment remains at least 102%
of the Purchase Limit and the Purchase Limit is not less than the outstanding
Aggregate Investment.
Section 1.7. Optional Repurchases. At any time that the Aggregate
Investment is less than 10% of the Aggregate Commitment in effect on the date
hereof, the Seller may, upon thirty days' notice to the Agent and each Purchaser
Agent, repurchase the entire Sold Interest from the Purchasers at a price equal
to the outstanding Matured Aggregate Investment and all other amounts then owed
hereunder. Upon the payment of the repurchase price pursuant to this Section,
the Agent and each Purchaser Agent shall execute and deliver all documents and
instruments reasonably requested by the Seller in order to evidence the release
of the Sold Interest. Any sale pursuant to this Section shall be without
recourse, representation or warranty except for the representation and warranty
that the portion of the Sold Interest sold by each Purchaser is free and clear
of any Adverse Claim created or granted by, or attributable to, such Purchaser.
Section 1.8. Assignment of Purchase Agreement. The Seller hereby
assigns and otherwise transfers to the Agent (for the benefit of the Agent, each
Purchaser Agent, each Purchaser and any other Person to whom any amount is owed
hereunder), all of the Seller's right, title and interest in, to and under the
Purchase Agreement. The Seller shall execute, file and record all financing
<PAGE>
statements, continuation statements and other documents required to perfect or
protect such assignment. This assignment includes (a) all monies due and to
become due to the Seller from the Originator under or in connection with the
Purchase Agreement (including fees, expenses, costs, indemnities and damages for
the breach of any obligation or representation related to such agreement) and
(b) all rights, remedies, powers, privileges and claims of the Seller against
the Originator under or in connection with the Purchase Agreement. All
provisions of the Purchase Agreement shall inure to the benefit of, and may be
relied upon by, the Agent, each Purchaser Agent, each Purchaser and each such
other Person. At any time that a Termination Event has occurred and is
continuing, the Agent, on behalf of the Purchaser Agents and the Purchasers,
shall have the sole right to enforce the Seller's rights and remedies under the
Purchase Agreement to the same extent as the Seller could absent this
assignment, but without any obligation on the part of the Agent, any Purchaser
Agent, any Purchaser or any other such Person to perform any of the obligations
of the Seller under the Purchase Agreement (or the promissory note executed
thereunder). All amounts distributed to the Seller under the Purchase Agreement
from Receivables sold to the Seller thereunder shall constitute Collections
hereunder and shall be applied in accordance herewith.
Article II
Sales to and from Conduit Purchasers; Allocations
Section 2.1. Purchases from a Conduit Purchaser. (a) Each Conduit
Purchaser may, at any time, sell to the relevant Related Bank Purchasers
pursuant to the relevant Transfer Agreement any percentage designated by such
Conduit Purchaser of such Conduit Purchaser Investment and its related Conduit
Purchaser Settlement (each, a "Put").
(b) Any portion of any Investment of a Conduit Purchaser and related
Conduit Purchaser Settlement purchased by a Related Bank Purchaser shall be
considered part of such Related Bank Purchaser's Investment and related Conduit
Purchaser Settlement from the date of the relevant Put. At the end of each
applicable Tranche Period following any purchase by a Related Bank Purchaser of
any portion of the relevant Conduit Purchaser Investment of the relevant Conduit
Purchaser, the Seller shall pay to the relevant Purchaser Agent (for the ratable
benefit of each such Purchaser) an amount equal to a portion of the sum of (i)
the Assigned Conduit Purchaser Settlement and (ii) all unpaid Discount owed to
such Conduit Purchaser (whether or not then due) to the end of each applicable
Tranche Period to which any Investment being Put has been allocated, (iii) all
accrued but unpaid fees (whether or not then due) payable to such Conduit
Purchaser in connection herewith at the time of such purchase and (iv) all
accrued and unpaid costs, expenses and indemnities due to such Conduit Purchaser
from the Seller in connection herewith, which portion shall be calculated by
dividing the amount of Investment allocated to the applicable Tranche Period by
the total amount of Investment purchased.
(c) The proceeds from each Put received by a Conduit Purchaser (other
than amounts described in clauses (iii) and (iv) of the preceding sentence)
shall be used solely to pay that portion of the outstanding commercial paper of
<PAGE>
the relevant Conduit Purchaser issued to fund or maintain the Investment of such
Conduit Purchaser so transferred. Until used to pay commercial paper, all
proceeds of any Put pursuant to this Section shall be invested in Permitted
Investments. All earnings on such Permitted Investments shall be promptly
remitted to the Seller.
Section 2.2. Purchases by a Conduit Purchaser. Each Conduit Purchaser
may at any time deliver to its Purchaser Agent and each relevant Related Bank
Purchaser a notification of assignment in substantially the form of Exhibit A to
the relevant Transfer Agreement. If a Conduit Purchaser delivers such notice,
each relevant Related Bank Purchaser shall sell to such Conduit Purchaser and
such Conduit Purchaser shall purchase in full from each such Related Bank
Purchaser, the Investment of the Related Bank Purchasers on the last day of the
relevant Tranche Periods, at a purchase price equal to such Investment plus
accrued and unpaid Discount thereon. Any sale from any Related Bank Purchaser to
the relevant Conduit Purchaser pursuant to this Section 2.2 shall be without
recourse, representation or warranty except for the representation and warranty
that the Investment sold by such Related Bank Purchaser is free and clear of any
Adverse Claim created or granted by such Related Bank Purchaser and that such
Related Bank Purchaser has not suffered a Bankruptcy Event.
Section 2.3. Allocations and Distributions.
(a) Non-Reinvestment Periods. Before the Termination Date unless an
Interim Liquidation is in effect, on each day during a period that a Conduit
Purchaser is not making Reinvestment Purchases (as established under Section
1.1(d)), the Collection Agent (i) shall set aside and hold solely for the
benefit of the applicable Conduit Purchaser (or deliver to the applicable
Purchaser Agent, if so instructed pursuant to Section 3.2(a)) such Conduit
Purchaser's Purchase Interest in all Collections received on such day and (ii)
shall distribute on the last day of each CP Tranche Period to the applicable
Purchaser Agent (for the benefit of such Conduit Purchaser) the amounts so set
aside up to the amount of such Conduit Purchaser's Purchase Amount and, to the
extent not already paid in full, all Discount thereon and all other amounts then
due from the Seller in connection with such Purchase Amount and Tranche Period.
As provided in Section 1.4(c) all Discount and other amounts payable hereunder
other than the Purchase Amount are payable by the Seller. If any part of the
Sold Interest in any Collections is applied to pay any such amounts pursuant to
this Section 2.3(a) and after giving effect to such application the Sold
Interest is greater than 100%, the Seller shall pay to the Collection Agent the
amount so applied to the extent necessary so that after giving effect to such
payment the Sold Interest is no greater than 100%, for distribution as part of
the Purchase Interest in Collections.
(b) Termination Date and Interim Liquidations. On each day during any
Interim Liquidation and on each day on and after the Termination Date the
Collection Agent shall set aside and hold solely for the account of each
Purchaser Agent, for the benefit of each Purchaser Group to the extent provided
below, (or deliver to each Purchaser Agent, if so instructed pursuant to Section
3.2(a)) and for the account of the Agent, the Sold Interest in all Collections
received on such day and such Collections shall be allocated as follows:
(i) first, ratably to each Purchaser Group until all Purchase
Amounts of, and Discount due but not already paid to, each Purchaser Group
under the Transaction Documents has been paid in full; and
(ii) second, ratably to each Purchaser Group until all amounts
owed under the Transaction Documents to such Purchaser Group have been paid
in full.
(iii) third, to the Agent until all amounts owed under the
Transaction Documents to such Person have been paid in full;
(iv) fourth, to each Purchaser Agent until all amounts owed under
the Transaction Documents to such Persons have been paid in full;
(v) fifth, to any other Person to whom any amounts are owed under
the Transaction Documents until all such amounts have been paid in full;
and
(vi) sixth, to the Seller (or as otherwise required by applicable
law).
Unless an Interim Liquidation has ended by such date (in which case Reinvestment
Purchases shall resume to the extent provided in Section 1.1(d)), on the last
day of each Tranche Period (unless otherwise instructed by a Purchaser Agent
pursuant to Section 3.2(a)), the Collection Agent shall pay to the appropriate
parties, from such set aside Collections, all amounts allocated to such Tranche
Period and all Tranche Periods that ended before such date that are due in
accordance with the priorities in clauses (i) and (ii) above. No distributions
shall be made to pay amounts under clauses (iii), (iv), (v), and (vi) above
until sufficient Collections have been set aside to pay all amounts described in
clause (i) that may become payable for all outstanding Tranche Periods. As
provided in Section 1.4(c) all interest and other amounts payable hereunder
other than Investment are payable by the Seller. If any part of the Sold
Interest in any Collections is applied to pay any such amounts pursuant to this
Section 2.3(b) and after giving effect to such application the Sold Interest is
greater than 100%, the Seller shall pay to the Collection Agent the amount so
applied to the extent necessary so that after giving effect to such payment the
Sold Interest is no greater than 100%, for distribution as part of the Sold
Interest in Collections.
Article III
Administration and Collections
Section 3.1. Appointment of Collection Agent. (a) The servicing,
administering and collecting of the Receivables shall be conducted by a Person
(the "Collection Agent") designated to so act on behalf of the Purchasers under
this Article III. As the Initial Collection Agent, Originator is hereby
designated as, and agrees to perform the duties and obligations of, the
Collection Agent. The Originator acknowledges that the Agent, each Purchaser
Agent and each Purchaser have relied on the Originator's agreement to act as
Collection Agent (and the agreement of any of the sub-collection agents to so
act) in making the decision to execute and deliver this Agreement and agrees
that it will not voluntarily resign as Collection Agent without 90 days prior
written notice to the Agent nor permit any sub-collection agent to voluntarily
resign as a sub-collection agent without 90 days prior written notice to the
Agent. In addition, the Collection Agent may only voluntarily resign as a result
of nonpayment of the Collection Agent Fee. At any time after the occurrence and
<PAGE>
during the continuance of a Collection Agent Replacement Event, the Agent, upon
the direction of the Instructing Group, may designate a new Collection Agent to
succeed the Originator (or any successor Collection Agent).
(b) The Originator may, and if requested by the Agent, upon the
direction of the Instructing Group, shall, delegate its duties and obligations
as Collection Agent to the Parent or other Affiliate (acting as a sub-collection
agent). Notwithstanding such delegation, the Originator shall remain primarily
liable for the performance of the duties and obligations so delegated, and the
Agent, each Purchaser Agent and each Purchaser shall have the right to look
solely to the Originator for such performance. The Agent (with the consent of
the Instructing Group) may at any time after the occurrence and during the
continuance of a Collection Agent Replacement Event remove or replace any
sub-collection agent.
(c) If replaced, the Collection Agent agrees it will terminate, and
will cause each existing sub-collection agent to terminate, its collection
activities in a manner requested by the Agent to facilitate the transition to a
new Collection Agent. The Collection Agent shall cooperate with and assist any
new Collection Agent (including providing access to, and transferring, all
Records and allowing (to the extent permitted by applicable law and contract)
the new Collection Agent to use all licenses, hardware or software necessary or
desirable to collect the Receivables). The Originator irrevocably agrees to act
(if requested to do so) as the data-processing agent for any new Collection
Agent in substantially the same manner as the Originator conducted such
data-processing functions while it acted as the Collection Agent. Any new
Collection Agent shall execute a confidentiality agreement consistent with the
provisions of Section 9.10 hereof.
Section 3.2. Duties of Collection Agent. (a) The Collection Agent
shall take, or cause to be taken, all action necessary or advisable to collect
each Receivable in accordance with this Agreement, the Credit and Collection
Policy and all applicable laws, rules and regulations using the skill and
attention the Collection Agent exercises in collecting other receivables or
obligations owed solely to it. The Collection Agent shall, in accordance
herewith, set aside all Collections to which a Purchaser is entitled. If so
instructed by the appropriate Purchaser Agent, after the occurrence and during
the continuance of a Collection Agent Replacement Event, the Collection Agent
shall transfer to the appropriate Purchaser Agent the amount of Collections to
which the appropriate Purchaser Group is entitled by the Business Day following
receipt. Each party hereto hereby appoints the Collection Agent to enforce such
Person's rights and interests in the Receivables, but (notwithstanding any other
provision in any Transaction Document) the Agent, upon the direction of the
Instructing Group, shall at all times after the occurrence and during the
continuance of a Collection Agent Replacement Event have the sole right to
direct the Collection Agent to commence or settle any legal action to enforce
collection of any Receivable.
(b) If no Termination Event exists and the Collection Agent determines
that such action is appropriate in order to maximize the Collections, the
Collection Agent may, in accordance with the Credit and Collection Policy,
extend the maturity of any Receivable or adjust the outstanding balance of any
Receivable. Any such extension or adjustment shall not alter the status of a
Receivable as a Defaulted Receivable or Delinquent Receivable or limit any
<PAGE>
rights of the Agent, any Purchaser Agent or the Purchasers hereunder. If a
Termination Event exists, the Collection Agent may make such extensions or
adjustments only with the prior consent of the Instructing Group.
(c) The Collection Agent shall turn over to the Seller (i) any
percentage of Collections in excess of the Sold Interest, less all reasonable
costs and expenses of the Collection Agent for servicing, collecting and
administering the Receivables and (ii) subject to Section 1.5(d), the
collections and records for any indebtedness owed to the Seller that is not a
Receivable. The Collection Agent shall have no obligation to remit any such
funds or records to the Seller until the Collection Agent receives evidence
(satisfactory to the Agent) that the Seller is entitled to such items. The
Collection Agent has no obligations concerning indebtedness that is not a
Receivable other than to deliver the collections and records for such
indebtedness to the Seller when required by this Section 3.2(c).
Section 3.3. Reports. On or before each Settlement Date, and at such
other times after the occurrence and during the continuance of a Termination
Event covering such other periods as is requested by the Agent or the
Instructing Group, the Collection Agent shall deliver to the Agent and each
Purchaser Agent an electronic and printed report reflecting information as of
the close of business of the Collection Agent for the immediately preceding
calendar month or such other preceding period as is requested (each a "Periodic
Report"), containing the information described on Exhibit C (with such
modifications or additional information as requested by the Agent or the
Instructing Group).
Section 3.4. Lock-Box and Depositary Account Arrangements. The Agent,
upon the direction of the Instructing Group, is hereby authorized to give notice
at any time after the occurrence of a Collection Agent Replacement Event to any
or all Lock-Box Banks and Depositary Banks that the Agent is exercising its
rights under the Lock-Box Letters or Depositary Account Letters, as applicable,
and to take all actions permitted under the Lock-Box Letters or the Depositary
Account Letters. The Seller agrees to take any action requested by the Agent to
facilitate the foregoing. After the Agent takes any such action under the
Lock-Box Letters or Depositary Account Letters, the Seller shall immediately
deliver to the Agent any Collections received by the Seller. If the Agent takes
control of any Lock-Box Account or Depositary Account, the Agent shall
distribute Collections it receives in accordance herewith and shall deliver to
the Collection Agent, for distribution under Section 3.2, all other amounts it
receives from such Lock-Box Account or Depositary Account.
Section 3.5. Enforcement Rights. (a) The Agent may at any time after
the occurrence of a Collection Agent Replacement Event direct the Obligors and
the Lock-Box Banks to make all payments on the Receivables directly to the Agent
or its designee. The Agent may, and the Seller shall at the Agent's request,
withhold the identity of the Purchasers from the Obligors, Lock-Box Banks and
Depositary Banks. Upon the Agent's request, upon the direction of the
Instructing Group, after the occurrence of a Collection Agent Replacement Event,
the Seller (at the Seller's expense) shall (i) give notice to each Obligor of
the Agent's ownership of the Sold Interest and direct that payments on
Receivables be made directly to the Agent or its designee, (ii) assemble for the
Agent all Records and collateral security for the Receivables and the Related
Security and transfer to the Agent (or its designee), or (to the extent
permitted by applicable law and contract) license to the Agent (or its designee)
the use of, all software useful to collect the Receivables and (iii) segregate
in a manner acceptable to the Agent all Collections the Seller receives and,
<PAGE>
promptly upon receipt, remit such Collections in the form received, duly
endorsed or with duly executed instruments of transfer, to the Agent or its
designee on behalf of the Purchaser Agents and the Purchasers.
(b) After the occurrence of a Collection Agent Replacement Event, the
Seller hereby irrevocably appoints the Agent on behalf of the Purchaser Agents
and the Purchasers as its attorney-in-fact coupled with an interest, with full
power of substitution and with full authority in the place of the Seller, to
take any and all steps deemed desirable by the Agent, upon the direction of the
Instructing Group, in the name and on behalf of the Seller to (i) collect any
amounts due under any Receivable, including endorsing the name of the Seller on
checks and other instruments representing Collections and enforcing such
Receivables and the Related Security, and (ii) exercise any and all of the
Seller's rights and remedies under the Purchase Agreement and the Limited
Guaranty. The Agent's powers under this Section 3.5(b) shall not subject the
Agent to any liability if any action taken by it proves to be inadequate or
invalid, nor shall such powers confer any obligation whatsoever upon the Agent.
(c) None of the Agent, any Purchaser Agent or any Purchaser shall have
any obligation to take or consent to any action to realize upon any Receivable
or Related Security or to enforce any rights or remedies related thereto.
Section 3.6. Collection Agent Fee. On or before each Settlement Date,
the Seller shall pay to the Collection Agent a fee for the immediately preceding
calendar month as compensation for its services (the "Collection Agent Fee")
equal to (a) at all times the Originator or an Affiliate of any Bergen Entity is
the Collection Agent, such consideration as is set forth in Section 3.1 of the
Purchase Agreement, the receipt and sufficiency of which is hereby acknowledged,
and (b) at all times any other Person is the Collection Agent, a reasonable
amount agreed upon by the Agent (with the consent of the Instructing Group which
consent shall not be unreasonably withheld) and the new Collection Agent on an
arm's-length basis reflecting rates and terms prevailing in the market at such
time. The Collection Agent may apply to payment of the Collection Agent Fee only
the portion of the Collections in excess of the Sold Interest plus Collections
that fund Reinvestment Purchases. The Agent may, with the consent of the
Instructing Group which consent shall not be unreasonably withheld, pay the
Collection Agent Fee to the Collection Agent from the Sold Interest in
Collections. The Seller shall be obligated to reimburse any such payment.
Section 3.7. Responsibilities of the Seller. The Seller shall, or
shall cause the Originator to, pay when due all Taxes payable in connection with
the Receivables and the Related Security or their creation or satisfaction. The
Seller shall, and shall cause the Originator to, perform all of its obligations
under agreements related to the Receivables and the Related Security to the same
extent as if interests in the Receivables and the Related Security had not been
transferred hereunder or, in the case of the Originator, under the Purchase
Agreement. The Agent's, any Purchaser Agent's or any Purchaser's exercise of any
rights hereunder shall not relieve the Seller or the Originator from such
obligations. None of the Agent, any Purchaser Agent or any Purchaser shall have
any obligation to perform any obligation of the Seller or of the Originator or
any other obligation or liability in connection with the Receivables or the
Related Security.
<PAGE>
Section 3.8. Actions by Seller. The Seller shall defend and indemnify
the Agent, each Purchaser Agent and each Purchaser against all reasonable costs,
expenses, claims and liabilities for any action taken by the Seller, the
Originator or any other Affiliate of the Seller or of the Originator (whether
acting as Collection Agent or otherwise) related to any Receivable and the
Related Security, or arising out of any alleged failure of compliance of any
Receivable or the Related Security with the provisions of any law or regulation.
If any goods related to a Receivable are repossessed, the Seller agrees to
resell, or to have the Originator or another Affiliate resell, such goods in a
commercially reasonable manner for the account of the Agent and remit, or have
remitted, to the Agent the Purchasers' share in the gross sale proceeds thereof
net of any out-of-pocket expenses and any equity of redemption of the Obligor
thereon. Any such moneys collected by the Seller or the Originator or other
Affiliate of the Seller pursuant to this Section 3.8 shall be segregated and
held in trust for the Agent and remitted to the Agent within one Business Day of
receipt as part of the Sold Interest in Collections for application as provided
herein.
Section 3.9. Indemnities by the Collection Agent. Without limiting any
other rights any Person may have hereunder or under applicable law, the
Collection Agent hereby indemnifies and holds harmless the Agent, each Purchaser
Agent and each Purchaser and their respective officers, directors, agents and
employees (each an "Indemnified Party") from and against any and all damages,
losses, claims, liabilities, penalties, Taxes, reasonable costs and expenses
(including reasonable attorneys' fees and court costs) (all of the foregoing
collectively, the "Indemnified Losses") at any time imposed on or incurred by
any Indemnified Party arising out of or otherwise relating to:
(i) any representation or warranty made by or on behalf of the
Collection Agent in this Agreement, any other Transaction Document, any
Periodic Report or any other information or report delivered by the
Collection Agent pursuant hereto, which shall have been false or incorrect
in any material respect when made;
(ii) the failure by the Collection Agent to comply with any
applicable law, rule or regulation related to any Receivable or the Related
Security;
(iii) any loss of a perfected security interest (or in the
priority of such security interest) as a result of any commingling by the
Collection Agent of funds to which the Agent, any Purchaser Agent or any
Purchaser is entitled hereunder with any other funds; or
(iv) any failure of the Collection Agent to perform its duties or
obligations in accordance with the provisions of this Agreement or any
other Transaction Document to which the Collection Agent is a party;
whether arising by reason of the acts to be performed by the Collection Agent
hereunder or otherwise, excluding only Indemnified Losses to the extent (a) a
final judgment of a court of competent jurisdiction determined that such
Indemnified Losses resulted from gross negligence or willful misconduct of the
Indemnified Party seeking indemnification, (b) solely due to the credit risk of
the Obligor and for which reimbursement would constitute recourse to the
Collection Agent for uncollectible Receivables, or (c) such Indemnified Losses
<PAGE>
include Taxes on, or measured by, the overall net income of the Agent, any
Purchaser Agent or any Purchaser computed in accordance with the Intended Tax
Characterization or other Excluded Taxes; provided, however, that nothing
contained in this sentence shall limit the liability of the Collection Agent or
limit the recourse of the Agent, any Purchaser Agent and each Purchaser to the
Collection Agent for any amounts otherwise specifically provided to be paid by
the Collection Agent hereunder.
Article IV
Representations and Warranties
Section 4.1. Representations and Warranties of the Seller. The Seller
represents and warrants to the Agent, each Purchaser Agent and each Purchaser
that:
(a) Corporate Existence and Power. Each of the Seller and each
Bergen Entity is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and has all corporate
power and authority and all governmental licenses, authorizations, consents
and approvals required to carry on its business in each jurisdiction in
which its business is now conducted, except where failure to obtain such
license, authorization, consent or approval would not have (i) an adverse
effect on its ability to perform its obligations under, or the
enforceability of, any Transaction Document, (ii) a material adverse effect
on its business or financial condition, (iii) an adverse effect on the
interests of the Agent, any Purchaser Agent or any Purchaser under any
Transaction Document or (iv) an adverse effect on the enforceability or
collectibility of any Receivable.
(b) Corporate Authorization and No Contravention. The execution,
delivery and performance by each of the Seller and each other Bergen Entity
of each Transaction Document to which it is a party (i) are within its
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) do not contravene or constitute a default under (A) any
applicable law, rule or regulation, (B) its charter or by-laws or (C) any
material agreement, order or other instrument to which it is a party or its
property is subject and (iv) will not result in any Adverse Claim on any
Receivable, the Related Security or Collection or give cause for the
acceleration of any indebtedness of the Seller or any other Bergen Entity.
(c) No Consent Required. No approval, authorization or other
action by, or filings with, any Governmental Authority or other Person is
required in connection with the execution, delivery and performance by the
Seller or any other Bergen Entity of any Transaction Document to which it
is a party or any transaction contemplated thereby except with respect to
UCC filings contemplated by the Transaction Documents.
(d) Binding Effect. Each Transaction Document to which the Seller
or any other Bergen Entity is a party constitutes the legal, valid and
binding obligation of such Person enforceable against that Person in
accordance with its terms, except as limited by bankruptcy, insolvency, or
<PAGE>
other similar laws of general application relating to or affecting the
enforcement of creditors' rights generally and subject to general
principles of equity.
(e) Perfection of Ownership Interest. Immediately preceding its
sale of Receivables to the Seller, the Originator was the owner of, and
effectively sold, such Receivables to the Seller, free and clear of any
Adverse Claim. The Seller owns the Receivables free of any Adverse Claim
other than the interests of the Purchasers (through the Agent) therein that
are created hereby, and each Purchaser shall at all times have a valid
undivided percentage ownership interest, which shall be a first priority
perfected security interest for purposes of Article 9 of the applicable
Uniform Commercial Code, in the Receivables and Collections to the extent
of its Purchase Interest then in effect.
(f) Accuracy of Information. All information furnished by the
Seller, any other Bergen Entity or any Affiliate of any such Person to the
Agent, any Purchaser Agent or any Purchaser in connection with any
Transaction Document, or any transaction contemplated thereby, is true and
accurate in all material respects (and is not incomplete by omitting any
information necessary to prevent such information from being materially
misleading).
(g) No Actions, Suits. Except as disclosed in writing to the
Agent and each Purchase Agent or disclosed in reports filed with the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, there are no actions, suits or other proceedings
(including matters relating to environmental liability) pending or
threatened against or affecting the Seller or any other Bergen Entity, or
any of their respective properties, that (i) if adversely determined
(individually or in the aggregate), may have a material adverse effect on
the financial condition of the Seller or any other Bergen Entity or on the
collectibility of the Receivables or (ii) involve any Transaction Document
or any transaction contemplated thereby. None of the Seller or any other
Bergen Entity is in default of any contractual obligation or in violation
of any order, rule or regulation of any Governmental Authority, which
default or violation may have a material adverse effect upon (i) the
financial condition of the Seller and the other Bergen Entities taken as a
whole or (ii) the collectibility of the Receivables.
(h) No Material Adverse Change. Except as disclosed in writing to
the Agent and each Purchaser Agent or disclosed in reports filed with the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, since September 30, 1999, there has been no material
adverse change in the collectibility of the Receivables, taken as a whole,
or the Seller's or any other Bergen Entity's (i) financial condition,
business, operations or prospects or (ii) ability to perform its
obligations under any Transaction Document.
(i) Accuracy of Exhibits; Lock-Box and Depositary Account
Arrangements. All information on Exhibits D-F (listing offices and names of
the Seller and the Originator and where they maintain Records; the
Subsidiaries; Lock Boxes; and Depositary Accounts) is true and complete,
subject to any changes permitted by, and notified to the Agent in
<PAGE>
accordance with, Article V. The Seller has delivered a copy of all Lock-Box
Agreements and Depositary Account Letters to the Agent. The Seller has not
granted any interest in any Lock-Box, Lock-Box Account or Depositary
Account to any Person other than the Agent and, (i) upon delivery to a
Lock-Box Bank of the related Lock-Box Letter, the Agent will have exclusive
ownership and control of the Lock-Box Account at such Lock-Box Bank and
(ii) upon delivery to a Depositary Bank of the related Depositary Account
Letter, the Agent will have exclusive ownership and control of the
Depositary Account at such Depositary Bank.
(j) Sales by the Originator. Each sale by the Originator to the
Seller of an interest in Receivables and their Collections has been made in
accordance with the terms of the Purchase Agreement, including the payment
by the Seller to the Originator of the purchase price described in the
Purchase Agreement. Each such sale has been made for "reasonably equivalent
value" (as such term is used in Section 548 of the Bankruptcy Code) and not
for or on account of "antecedent debt" (as such term is used in Section 547
of the Bankruptcy Code) owed by the Originator to the Seller.
Section 4.2. Representations and Warranties of the Collection Agent.
The Collection Agent represents and warrants to the Agent, each Purchase Agent
and each Purchaser that:
(a) The Collection Agent is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified to do business, and is in good
standing, in every jurisdiction where the nature of its business requires
it to be so qualified, except to the extent the failure to so qualify would
not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Collection
Agent of this Agreement and the other documents to be delivered by it
hereunder (i) are within the Collection Agent's corporate powers, (ii) have
been duly authorized by all necessary corporate action and (iii) do not
contravene (1) the Collection Agent's charter or by-laws, (2) any material
law, rule or regulation applicable to the Collection Agent, (3) any
material contractual restriction binding on or affecting the Collection
Agent or its property or (4) any order, writ, judgment, award, injunction
or decree binding on or affecting the Collection Agent or its property.
This Agreement has been duly executed and delivered by the Collection
Agent.
(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 Collection
Agent of this Agreement or any other document to be delivered by it
hereunder.
(d) This Agreement constitutes the legal, valid and binding
obligation of the Collection Agent enforceable against the Collection Agent
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
<PAGE>
(e) If the Collection Agent is an Originator or one of its
Affiliates, each Periodic Report, information, exhibit, financial
statement, document, book, record or report furnished or to be furnished at
any time by or on behalf of the Seller or the Originators to the Agent or
the Purchasers in connection with this Agreement is correct in all material
respects as of its date or (except as otherwise disclosed to the Agent or
the Purchasers, as the case may be, at such time) as of the date so
furnished, and no such document contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which
they were made, not misleading.
(f) No proceeds of any purchase or reinvestment hereunder will be
used to acquire any equity security of a class which is registered pursuant
to Section 12 of the Securities Exchange Act of 1934.
(g) The Collection Agent has reviewed the areas within its
business and operations which could be adversely affected by, and has
developed or are developing a program to address on a timely basis, the
"Year 2000 Problem" (that is, the risk that computer applications used by
the Collection Agent and its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date on or after December 31, 1999), and have made related
appropriate inquiry of material suppliers and vendors. Based on such review
and program, the Collection Agent believes that the "Year 2000 Problem"
will not have a material adverse effect on the Collection Agent.
Article V
Covenants
Section 5.1. Covenants of the Seller. The Seller hereby covenants and
agrees to comply with the following covenants and agreements, unless the Agent
(with the consent of the Instructing Group) shall otherwise consent:
(a) Financial Reporting. The Seller will, and will cause each
other Bergen Entity to, maintain a system of accounting established and
administered in accordance with GAAP and will furnish to the Agent, each
Purchaser Agent and each Purchaser:
(i) Annual Financial Statements. Within 90 days after each
fiscal year of (A) the Parent copies of its annual audited financial
statements (including a consolidated balance sheet, consolidated
statement of income and retained earnings and statement of cash flows,
with related footnotes) certified by independent certified public
accountants satisfactory to the Agent and prepared on a consolidated
basis in conformity with GAAP, which may be included as part of the
Parent's report on Form 10-K delivered to the Securities and Exchange
Commission, and (B) each of the Seller and the Originator the annual
balance sheet for such Person (and, additionally for the Seller, an
annual profit and loss statement) certified by a Designated Financial
Officer thereof, in each case prepared on a consolidated basis in
<PAGE>
conformity with GAAP as of the close of such fiscal year for the
fiscal year then ended;
(ii) Quarterly Financial Statements. Within 45 days after
each (except the last) fiscal quarter of each fiscal year of (A) the
Parent, copies of its unaudited financial statements (including at
least a consolidated balance sheet as of the close of such quarter and
statements of earnings and sources and applications of funds for the
period from the beginning of the fiscal year to the close of such
quarter), which may be included as part of the Parent's report on
Form 10-Q delivered to the Securities and Exchange Commission,
certified by a Designated Financial Officer and prepared in a manner
consistent with the financial statements described in part (A) of
clause (i) of this Section 5.l(a) and (B) each of the Seller and the
Originator, the quarterly balance sheet for such Person (and,
additionally for the Seller, a profit and loss statement) for the
period from the beginning of such fiscal year to the close of such
quarter, in each case certified by a Designated Financial Officer
thereof and prepared in a manner consistent with part (B) of clause
(i) of Section 5.1(a);
(iii) Officer's Certificate. Each time financial statements
are furnished pursuant to clause (i) or (ii) of this Section 5.1(a), a
compliance certificate (in substantially the form of Exhibit H) signed
by a Designated Financial Officer, dated the date of such financial
statements, and containing a computation of each of the financial
ratios and restrictions contained herein;
(iv) Public Reports. Promptly upon becoming available, a
copy of each report or proxy statement filed by the Parent with the
Securities Exchange Commission or any securities exchange; and
(v) Other Information. With reasonable promptness, such
other information (including non-financial information) as may be
reasonably requested by the Agent, any Purchaser Agent or any
Purchaser (with a copy of such request to the Agent).
(b) Notices. Immediately upon becoming aware of any of the
following the Seller will notify the Agent and each Purchaser Agent and
provide a description of:
(i) Potential Termination Events. The occurrence of any
Termination Event and Potential Termination Event described in
clause (b) or (e) of the definition of Termination Event, or any other
material Potential Termination Event;
(ii) Representations and Warranties. The failure of any
representation or warranty herein to be true (when made or at any time
thereafter) in any material respect;
(iii) Downgrading. The downgrading, withdrawal or suspension
of any rating by any rating agency of any indebtedness of any Obligor
with a Concentration Limit in excess of 2% or of the Parent;
<PAGE>
(iv) Litigation. The institution of any litigation,
arbitration proceeding or governmental proceeding reasonably likely to
be material to any Bergen Entity or the collectibility or quality of
the Receivables, taken as a whole;
(v) Judgments. The entry of any judgment or decree against
the Seller or any other Bergen Entity that remains unvacated, unbonded
or unstayed for a period of 20 consecutive days if the aggregate
amount of all judgments then outstanding against the Seller and the
other Bergen Entities exceeds $25,000,000; or
(vi) Changes in Business. Any change in, or proposed change
in, the character of any Bergen Entity's business that could
materially impair the collectibility or quality of the Receivables,
taken as a whole.
If the Agent or any Purchaser Agent receives such a notice, the Agent or such
Purchaser Agent shall promptly give notice thereof to each Purchaser Agent and
each Purchaser and, until each Conduit Purchaser has no Investment after the
Termination Date, to each CP Dealer and each Rating Agency.
(c) Conduct of Business. The Seller will perform, and will cause
each other Bergen Entity and Significant Subsidiary to perform, all actions
necessary to remain duly incorporated, validly existing and in good
standing in its jurisdiction of incorporation and to maintain all requisite
authority to conduct its business in each jurisdiction in which it conducts
business except to the extent that such failure would not have a Material
Adverse Effect.
(d) Compliance with Laws. The Seller will comply, and will cause
each other Bergen Entity to comply, with all laws, regulations, judgments
and other directions or orders imposed by any Governmental Authority to
which such Person or any Receivable, any Related Security or Collection may
be subject, except to the extent non-compliance would not have a Material
Adverse Effect.
(e) Furnishing Information and Inspection of Records. The Seller
will furnish to the Agent, each Purchaser Agent and the Purchasers such
information concerning the Receivables and the Related Security as the
Agent, any Purchaser Agent or a Purchaser may request. The Seller will, and
will cause the Originator to, permit, at any time after reasonable notice
during regular business hours, the Agent, any Purchaser Agent or any
Purchaser (or any representatives thereof) (i) to examine and make copies
of all Records, (ii) to visit the offices and properties of the Seller for
the purpose of examining the Records and (iii) to discuss matters relating
hereto with any of the Seller's or the Originator's officers, directors,
employees or independent public accountants having knowledge of such
matters. Once a year, the Agent (at the request of any Purchaser Agent) may
(at the reasonable expense of the Seller) have an independent public
accounting firm conduct an audit of the Records or make test verifications
of the Receivables and Collections.
(f) Keeping Records. (i) The Seller will, and will cause the
Originator to, have and maintain (A) administrative and operating
procedures (including an ability to recreate Records if originals are
destroyed), (B) adequate facilities, personnel and equipment and (C) all
<PAGE>
Records and other information necessary or advisable for collecting the
Receivables (including Records adequate to permit the immediate
identification of each new Receivable and all Collections of, and
adjustments to, each existing Receivable). The Seller will give the Agent
and each Purchaser Agent prior notice of any material change in such
administrative and operating procedures.
(ii) The Seller will, (A) at all times from and after the
date hereof, clearly and conspicuously mark its computer and master
data processing books and records with a legend describing the
Agent's, the Purchaser Agents' and the Purchasers' interest in the
Receivables and the Collections and (B) upon the request of the Agent
after the occurrence and during the continuance of a Termination
Event, so mark each contract relating to a Receivable that consists of
chattel paper and deliver to the Agent all such contracts (including
all multiple originals of such contracts), with any appropriate
endorsement or assignment, or segregate (from all other receivables
then owned or being serviced by the Seller) the Receivables and all
contracts relating to each Receivable and hold in trust and safely
keep such contracts so legended in separate filing cabinets or other
suitable containers at such locations as the Agent may specify.
(g) Perfection. (i) The Seller will, and will cause the
Originator to, at its expense, promptly execute and deliver all instruments
and documents and take all action necessary or reasonably requested by the
Agent (including the execution and filing of financing or continuation
statements, amendments thereto or assignments thereof) to enable the Agent,
on behalf of the Purchaser Agents and the Purchasers, to exercise and
enforce all its rights hereunder and to vest and maintain vested in the
Agent, on behalf of the Purchaser Agents and the Purchasers, a valid, first
priority perfected security interest in the Receivables, the Collections,
the Purchase Agreement, the Lock-Box Accounts, the Depositary Accounts and
proceeds thereof free and clear of any Adverse Claim (and a perfected
ownership interest in the Receivables and Collections to the extent of the
Sold Interest). The Agent will be permitted to sign and file any
continuation statements, amendments thereto and assignments thereof that
are consistent with the Transaction Documents without the Seller's
signature.
(ii) The Seller will, and will cause the Originator to, only
change its name, identity or corporate structure or relocate its chief
executive office or the Records following thirty (30) days advance
notice to the Agent and each Purchaser Agent and the delivery to the
Agent of all financing statements, instruments and other documents
(including direction letters) requested by the Agent.
(iii) Each of the Seller and the Originator will at all
times maintain its chief executive offices within a jurisdiction in
the USA (other than in the states of Florida, Maryland and Tennessee)
in which Article 9 of the UCC is in effect. If the Seller or the
Originator moves its chief executive office to a location that imposes
Taxes, fees or other charges to perfect the Agent's, the Purchaser
Agents' and the Purchasers' interests hereunder or the Seller's
interests under the Purchase Agreement, the Seller will pay all such
amounts and any other costs and expenses incurred in order to maintain
the enforceability of the Transaction Documents, the Sold Interest and
<PAGE>
the interests of the Agent, the Purchaser Agents and the Purchasers in
the Receivables, the Related Security, Collections, Purchase
Agreement, Lock-Box Accounts and Depositary Accounts.
(h) Performance of Duties. The Seller will perform, and will
cause each other Bergen Entity and the Collection Agent (if an Affiliate)
to perform, its respective duties or obligations in accordance with the
provisions of each of the Transaction Documents. The Seller (at its
expense) will, and will cause each other Bergen Entity to, (i) fully and
timely perform in all material respects all agreements required to be
observed by it in connection with each Receivable, (ii) comply in all
material respects with the Credit and Collection Policy, and (iii) refrain
from any action that may impair the rights of the Agent, the Purchaser
Agents or the Purchasers in the Receivables, the Related Security,
Collections, Purchase Agreement, Lock-Box Accounts or Depositary Accounts.
(i) Payments on Receivables, Accounts. The Seller will, and will
cause the Originator to, at all times either (i) instruct Obligors to
deliver payments on the Receivables to a Lock-Box Account or (ii) promptly,
but in any event within two Business Days after receipt, deposit all
Collections received by such Persons into a Depositary Account or Lock-Box
Account. The Seller will, and will cause the Originator to, instruct all
Obligors to deliver payments on Receivables to a Lock-Box Account by no
later than March 31, 2000. If any such payments or other Collections are
received by the Seller or the Originator, it shall hold such payments in
trust for the benefit of the Agent, the Purchaser Agents and the Purchasers
until their deposit into a Depositary Account or Lock-Box Account. The
Seller will cause each Lock-Box Bank and Depositary Bank to comply with the
terms of each applicable Lock-Box Letter or Depositary Account Letter, as
applicable. The Seller will not permit the funds of any Affiliate to be
deposited into any Lock-Box Account or Depositary Account. If such funds
are nevertheless deposited into any Lock-Box Account or Depositary Account,
the Seller will promptly identify such funds for segregation. The Seller
will not, and will not permit any Collection Agent or other Person to,
commingle Collections or other funds to which the Agent or any Purchaser is
entitled with any other funds. The Seller shall only add, and shall only
permit the Originator to add, a Lock-Box Bank, Lock-Box, Lock-Box Account,
Depositary Bank or Depositary Account to those listed on Exhibit F if the
Agent has received notice of such addition, a copy of any new Lock-Box
Agreement or Depositary Account Agreement, as applicable, and an executed
and acknowledged copy of a Lock-Box Letter or Depositary Account Letter, as
applicable, substantially in the form of Exhibit G-1 or G-2, respectively,
(with such changes as are acceptable to the Agent) from any new Lock-Box
Bank or Depositary Bank, as applicable. The Seller shall only terminate a
Lock-Box Bank, Lock-Box or Depositary Bank, or close a Lock-Box Account or
Depositary Account, upon 30 days advance notice to the Agent.
(j) Sales and Adverse Claims Relating to Receivables. Except as
otherwise provided herein, the Seller will not, and will not permit the
Originator to, (by operation of law or otherwise) dispose of or otherwise
transfer, or create or suffer to exist any Adverse Claim upon, any material
portion of the Receivables or any proceeds thereof.
(k) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 3.2(b) and then subject to Section 1.5, the Seller
will not, and will not permit the Originator to, extend, amend, rescind or
cancel any Receivable.
<PAGE>
(l) Change in Business or Credit and Collection Policy. The
Seller will not make any material change in the character of its business
and will not, and will not permit the Originator to, make any material
change to the Credit and Collection Policy.
(m) Lock-Box and Depositary Account Letters. The Seller will
deliver to the Agent on or prior to January 31, 2000 all Lock-Box Letters
and Depositary Account Letters not delivered on the date hereof.
Article VI
Indemnification
Section 6.1. Indemnities by the Seller. Without limiting any other
rights any Person may have hereunder or under applicable law, the Seller hereby
indemnifies and holds harmless, on an after-tax basis, the Agent, each Purchaser
Agent and each Purchaser and their respective officers, directors, agents and
employees (each an "Indemnified Party") from and against any and all damages,
losses, claims, liabilities, penalties, Taxes and reasonable costs and expenses
(including attorneys' fees and court costs) (all of the foregoing collectively,
the "Indemnified Losses") at any time imposed on or incurred by any Indemnified
Party arising out of or otherwise relating to any Transaction Document, the
transactions contemplated thereby or any action taken or omitted by any of the
Indemnified Parties (including any action taken by the Agent as attorney-in-fact
for the Seller pursuant to Section 3.5(b)), whether arising by reason of the
acts to be performed by the Seller hereunder or otherwise, excluding only
Indemnified Losses to the extent (a) a final judgment of a court of competent
jurisdiction holds such Indemnified Losses resulted from gross negligence or
willful misconduct of the Indemnified Party seeking indemnification, (b) solely
due to the credit risk of the Obligor and for which reimbursement would
constitute recourse to the Seller or the Collection Agent for uncollectible
Receivables or (c) such Indemnified Losses include Excluded Taxes. Without
limiting the foregoing indemnification, but subject to the limitations set forth
in clauses (a), (b) and (c) of the previous sentence, the Seller shall indemnify
each Indemnified Party for Indemnified Losses relating to or resulting from:
(i) any representation or warranty made by the Seller, any Bergen
Entity or the Collection Agent (or any employee or agent of the Seller, any
other Bergen Entity or the Collection Agent) under or in connection with
this Agreement, any other Periodic Report or any other information or
report delivered by the Seller, any other Bergen Entity or the Collection
Agent pursuant hereto, which shall have been false or incorrect in any
material respect when made or deemed made;
(ii) the failure by the Seller, any other Bergen Entity or the
Collection Agent to comply with any applicable law, rule or regulation
related to any Receivable, or the nonconformity of any Receivable with any
such applicable law, rule or regulation;
(iii) the failure of the Seller to vest and maintain vested in
the Agent, for the benefit of each Purchaser Agent and the Purchasers, a
perfected ownership or security interest in the Sold Interest and the
property conveyed pursuant to Section 1.1(e) and Section 1.8, free and
clear of any Adverse Claim;
<PAGE>
(iv) any commingling of funds to which the Agent, any Purchaser
Agent or any Purchaser is entitled hereunder with any other funds;
(v) any failure of a Lock-Box Bank to comply with the terms of
the applicable Lock-Box Letter;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any
Receivable, or any other claim resulting from the sale or lease of goods or
the rendering of services related to such Receivable or the furnishing or
failure to furnish any such goods or services or other similar claim or
defense not arising from the financial inability of any Obligor to pay
undisputed indebtedness;
(vii) any failure of the Seller or any other Bergen Entity, or
any Affiliate of any thereof, to perform its duties or obligations in
accordance with the provisions of this Agreement or any other Transaction
Document to which such Person is a party (as a Collection Agent or
otherwise);
(viii) any action taken by the Agent as attorney-in-fact for the
Seller pursuant to Section 3.5(b); or
(ix) any environmental liability claim, products liability claim
or personal injury or property damage suit or other similar or related
claim or action of whatever sort, arising out of or in connection with any
Receivable or any other suit, claim or action of whatever sort relating to
any of the Transaction Documents.
Section 6.2. Increased Cost and Reduced Return. If the adoption after
the date hereof of any applicable law, rule or regulation, or any change therein
after the date hereof, or any change in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Funding Source, the Agent, any
Purchaser Agent or any Purchaser (collectively, the "Funding Parties") with any
request or directive (whether or not having the force of law) after the date
hereof of any such Governmental Authority (a "Regulatory Change") (a) subjects
any Funding Party to any charge or withholding on or in connection with a
Funding Agreement or this Agreement (collectively, the "Funding Documents") or
any Receivable, (b) changes the basis of taxation of payments to any of the
Funding Parties of any amounts payable under any of the Funding Documents
(except for changes in the rate of Tax on the overall net income of such Funding
Party), (c) imposes, modifies or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or any credit extended by, any of the
Funding Parties, (d) has the effect of reducing the rate of return on such
Funding Party's capital to a level below that which such Funding Party could
have achieved but for such adoption, change or compliance (taking into
consideration such Funding Party's policies concerning capital adequacy) or (e)
imposes any other condition, and the result of any of the foregoing is (x) to
impose a cost on, or increase the cost to, any Funding Party of its commitment
under any Funding Document or of purchasing, maintaining or funding any interest
acquired under any Funding Document, (y) to reduce the amount of any sum
received or receivable by, or to reduce the rate of return of, any Funding Party
<PAGE>
under any Funding Document or (z) to require any payment calculated by reference
to the amount of interests held or amounts received by it hereunder, then, upon
demand by the Agent or the applicable Purchaser Agent, the Seller shall pay to
the Agent (with respect to amounts owed to it) or the applicable Purchaser Agent
(with respect to amounts owed to it or any Purchaser in its Purchaser Group) for
the account of the Person such additional documented amounts as will compensate
the Agent, the Purchaser Agent or such Purchaser (or, in the case of any Conduit
Purchaser, will enable such Conduit Purchaser to compensate any Funding Source)
for such increased cost or reduction; provided, however, that the Agent or the
Purchase Agent, as applicable, shall promptly notify the Seller of any event
(the "Applicable Event") which might cause such Person to seek compensation, and
the Seller shall be obligated to pay only such compensation which is incurred
after the date sixty (60) days prior to the date such notice is given; provided,
however, that such 60 day limitation shall not apply to any such compensation
that is applicable retroactively to periods prior to the effective date of the
Applicable Event so long as the Agent notifies the Seller of the Applicable
Event within 60 days of a responsible officer of the Agent receiving actual
knowledge thereof.
Section 6.3. Other Costs and Expenses. The Seller shall pay to the
Agent (with respect to amounts owed to it) or the applicable Purchaser Agent
(with respect to amount owed to it or any Purchaser in its Purchaser Group) on
demand all reasonable costs and expenses (to the extent, in the case of a
Conduit Purchaser, not already included in such Conduit Purchaser's CP Rate) in
connection with (a) the preparation, execution, delivery and administration
(including amendments of any provision) of the Transaction Documents, (b) the
sale of the Sold Interest, (c) the perfection of the Agent's rights on behalf of
the Purchaser Agents and the Purchasers in the Receivables and Collections, (d)
the enforcement by the Agent, any Purchaser Agent or the Purchasers of the
obligations of the Seller under the Transaction Documents or of any Obligor
under a Receivable and (e) the maintenance by the Agent of the Depositary
Accounts, Lock-Boxes and Lock-Box Accounts, including fees, costs and expenses
of legal counsel for the Agent and each Purchaser Agent relating to any of the
foregoing or to advising the Agent, any Purchaser Agent and any Funding Source
about its rights and remedies under any Transaction Document or any related
Funding Agreement and all costs and expenses (including counsel fees and
expenses) of the Agent, each Purchaser Agent, each Purchaser and each Funding
Source in connection with the enforcement of the Transaction Documents or any
Funding Agreement and in connection with the administration of the Transaction
Documents following a Termination Event. The Seller shall reimburse the Agent,
each Purchaser Agent and each Purchaser for the cost of the Agent's or such
Purchaser's auditors (which may be employees of such Person) auditing the books,
records and procedures of the Seller. The Seller shall reimburse each Conduit
Purchaser for any amounts such Conduit Purchaser must pay to any Funding Source
pursuant to any Funding Agreement on account of any Tax. The Seller shall
reimburse each Conduit Purchaser on demand for all other costs and expenses
incurred by such Purchaser or any shareholder of a Conduit Purchaser in
connection with the Transaction Documents or the transactions contemplated
thereby, including the cost of auditing a Conduit Purchaser's books by certified
public accountants, the cost of the Ratings and the fees and out-of-pocket
expenses of counsel of the Agent, each Purchaser Agent, each Conduit Purchaser
or any shareholder, or administrator, of such Conduit Purchaser for advice
relating to such Conduit Purchaser's operation.
<PAGE>
Section 6.4. Withholding Taxes. (a) All payments made by the Seller
hereunder shall be made without withholding for or on account of any present or
future taxes (other than overall net income taxes on the recipient). If any such
withholding is so required, the Seller shall make the withholding, pay the
amount withheld to the appropriate authority before penalties attach thereto or
interest accrues thereon and pay such additional amount as may be necessary to
ensure that the net amount actually received by each Purchaser, each Purchaser
Agent and the Agent free and clear of such taxes (including such taxes on such
additional amount) is equal to the amount that the Purchaser, Purchaser Agent or
the Agent (as the case may be) would have received had such withholding not been
made. If the Agent, any Purchaser Agent or any Purchaser pays any such taxes,
penalties or interest the Seller shall reimburse the Agent, such Purchaser Agent
or such Purchaser for that payment on demand. If the Seller pays any such taxes,
penalties or interest, it shall deliver official tax receipts evidencing that
payment or certified copies thereof to the Purchaser, Purchaser Agent or Agent
on whose account such withholding was made (with a copy to the Agent if not the
recipient of the original) on or before the thirtieth day after payment.
(b) Before the first date on which any amount is payable hereunder for
the account of any Purchaser not incorporated under the laws of the USA such
Purchaser shall deliver to the Seller and the Agent each two (2) duly completed
copies of United States Internal Revenue Service Form W-8BEN or 8-WECI (or
successor applicable form) certifying that such Purchaser is entitled to receive
payments hereunder without deduction or withholding of any United States federal
income taxes. Each such Purchaser shall replace or update such forms when
necessary to maintain any applicable exemption and as requested by the Agent or
the Seller.
Section 6.5. Payments and Allocations. If any Person seeks
compensation pursuant to this Article VI, such Person shall deliver to the
Seller and the Agent a certificate setting forth the amount due to such Person,
a description of the circumstance giving rise thereto and the basis of the
calculations of such amount, which certificate shall be conclusive absent
manifest error. The Seller shall pay to the Agent (with respect to amounts owed
to it) or the applicable Purchaser Agent (with respect to amounts owed to it on
any Purchaser in its Purchaser Group), for the account of such Person, the
amount shown as due on any such certificate within 10 Business Days after
receipt of the notice.
<PAGE>
Article VII
Conditions Precedent
Section 7.1. Conditions to Closing. This Agreement shall become
effective on the first date all conditions in this Section 7.1 are satisfied. On
or before such date, the Seller shall deliver to the Agent and each Purchaser
Agent the following documents in form, substance and quantity acceptable to the
Agent and each Purchaser Agent, as applicable:
(a) A certificate of the Secretary of each of the Seller and each
Bergen Entity certifying (i) the resolutions of the Seller's and each
Bergen Entity's board of directors approving each Transaction Document to
which it is a party, (ii) the name, signature, and authority of each
officer who executes on the Seller's or any Bergen Entity's behalf a
Transaction Document (on which certificate the Agent, each Purchaser Agent
and each Purchaser may conclusively rely until a revised certificate is
received), (iii) the Seller's and each other Bergen Entity's certificate or
articles of incorporation certified by the Secretary of State of its state
<PAGE>
of incorporation, (iv) a copy of the Seller's and each other Bergen
Entity's by-laws and (v) good standing certificates issued by the
Secretaries of State of each jurisdiction where the Seller or any other
Bergen Entity has material operations.
(b) All instruments and other documents required, or deemed
desirable by the Agent or any Purchaser Agent, to perfect the first
priority interest of the Agent (on behalf of the Purchaser Agents and the
Purchasers) in the Receivables, Collections, the Purchase Agreement, the
Lock-Box Accounts and Depositary Accounts in all appropriate jurisdictions.
(c) UCC search reports from all jurisdictions the Agent or any
Purchaser Agent requests.
(d) Executed copies of (i) all consents and authorizations
necessary in connection with the Transaction Documents (ii) all Lock-Box
Letters and Depositary Account Letters executed prior to the date hereof,
(iii) a compliance certificate in the form of Exhibit H covering the period
ended October 31, 1999, (iv) a Periodic Report covering the month of
October, 1999 and (v) each Transaction Document.
(e) Favorable opinions of counsel to the Seller and each Bergen
Entity covering such matters as the Agent, any Conduit Purchaser or any
Purchaser Agent may request.
(f) Such other approvals, opinions or documents as the Agent or
any Conduit Purchaser may request.
(g) All legal matters related to the Purchase are satisfactory to
the Purchasers.
Section 7.2. Conditions to Each Purchase. The obligation of each
Committed Purchaser to make any Purchase, and the right of the Seller to
request or accept any Purchase, are subject to the conditions (and each
Purchase shall evidence the Seller's representation and warranty that
clauses (a)-(e) of this Section 7.2 have been satisfied) that on the date
of such Purchase before and after giving effect to the Purchase:
(a) no Potential Termination Event (or in the case of a
Reinvestment Purchase, a Termination Event) shall then exist or shall occur
as a result of the Purchase;
(b) the Termination Date has not occurred;
(c) after giving effect to the application of the proceeds of
such Purchase, (x) the outstanding Matured Aggregate Investment would not
exceed the Aggregate Commitment and (y) the outstanding Aggregate
Investment would not exceed the Purchase Limit;
<PAGE>
(d) the representations and warranties in Section 4.1 are true
and correct in all material respects on and as of such date (except to the
extent such representations and warranties relate solely to an earlier date
and then are true and correct as of such earlier date);
(e) each of the Seller and each other Bergen Entity is in full
compliance with the Transaction Documents (including all covenants and
agreements in Article V); and
(f) the Originator has not given any notice terminating its
purchase of Receivables pursuant to the Purchase Agreement.
Nothing in this Section 7.2 limits the obligations of each Related Bank
Purchaser, each Liquidity Bank and each Enhancement Bank to its related Conduit
Purchaser. Without limiting the foregoing, purchases shall automatically cease
hereunder without need of any further action (i) upon the occurrence and during
the continuance of a Termination Event described in clause (e) of the definition
thereof and (ii) 5 Business Days after the occurrence and during the continuance
of a Termination Event described in clause (f)(vi) of the definition thereof.
Article VIII
The Agent
Section 8.1. Appointment and Authorization. (a) Each Purchaser and
each Purchaser Agent hereby irrevocably designates and appoints Wachovia Bank,
N.A., as the "Agent" under the Transaction Documents and authorizes the Agent to
take such actions and to exercise such powers as are delegated to the Agent
thereby and to exercise such other powers as are reasonably incidental thereto.
The Agent shall hold, in its name, for the benefit of each Purchaser, the
Purchase Interest of the Purchaser. The Agent shall not have any duties other
than those expressly set forth in the Transaction Documents or any fiduciary
relationship with any Purchaser Agent or any Purchaser, and no implied
obligations or liabilities shall be read into any Transaction Document, or
otherwise exist, against the Agent. The Agent does not assume, nor shall it be
deemed to have assumed, any obligation to, or relationship of trust or agency
with, the Seller. Notwithstanding any provision of this Agreement or any other
Transaction Document, in no event shall the Agent ever be required to take any
action which exposes the Agent to personal liability or which is contrary to the
provisions of any Transaction Document or applicable law.
(b) Each Purchaser hereby irrevocably designates and appoints the
respective institution identified on the applicable signature page hereto or in
the related Transfer Supplement (as applicable) as its Purchaser Agent
hereunder, and each authorizes such Purchaser Agent to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to such Purchaser Agent by the
terms of this Agreement, if any, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Purchaser Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or other Purchaser Agent or the Agent, and no
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implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of such Purchaser Agent shall be read into this
Agreement or otherwise exist against such Purchaser Agent.
(c) Except as otherwise specifically provided in this Agreement, the
provisions of this Article VIII are solely for the benefit of the Purchaser
Agents, the Agent and the Purchasers, and none of the Seller or any Collection
Agent shall have any rights as a third-party beneficiary or otherwise under any
of the provisions of this Article VIII, except that this Article VIII shall not
affect any obligations which any Purchaser Agent, the Agent or the Purchaser may
have to the Seller or any Collection Agent under the other provisions of this
Agreement. Furthermore, no Purchaser shall have any rights as a third-party
beneficiary or otherwise under any of the provisions hereof in respect of a
Purchaser Agent which is not the Purchaser Agent for such Purchaser.
(d) In performing its functions and duties hereunder, the Agent shall
act solely as the agent of the Purchasers and the Purchaser Agents and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Seller or Collection Agent or any of their
successors and assigns. In performing its functions and duties hereunder, each
Purchaser Agent shall act solely as the agent of its respective Purchaser and
does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller, any Collection Agent,
any other Purchaser, any other Purchaser Agent or the Agent, or any of their
respective successors and assigns.
Section 8.2. Delegation of Duties. The Agent may execute any of its
duties through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
Section 8.3. Exculpatory Provisions. None of the Agent, any Purchaser
Agent nor any of their respective directors, officers, agents or employees shall
be liable for any action taken or omitted (i) with the consent or at the
direction of the Instructing Group or (ii) in the absence of such Person's gross
negligence or willful misconduct. The Agent shall not be responsible to any
Purchaser Agent, Purchaser or other Person for (i) any recitals,
representations, warranties or other statements made by the Seller, any other
Bergen Entity or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction
Document, (iii) any failure of the Seller, any other Bergen Entity or any of
their Affiliates to perform any obligation or (iv) the satisfaction of any
condition specified in Article VII. The Agent shall not have any obligation to
any Purchaser to ascertain or inquire about the observance or performance of any
agreement contained in any Transaction Document or to inspect the properties,
books or records of the Seller, any other Bergen Entity or any of their
Affiliates.
Section 8.4. Reliance by Agent. (a) Each Purchaser Agent and the Agent
shall in all cases be entitled to rely, and shall be fully protected in relying,
upon any document, other writing or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person and upon
advice and statements of legal counsel (including counsel to the Seller),
independent accountants and other experts selected by the Agent. Each Purchaser
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Agent and the Agent shall in all cases be fully justified in failing or refusing
to take any action under any Transaction Document unless it shall first receive
such advice or concurrence of the Purchasers, and assurance of its
indemnification, as it deems appropriate.
(b) The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the
Purchasers or the Purchaser Agents, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all Purchasers, the Agent
and Purchaser Agents.
(c) Each Purchaser Agent (with the consent of the Agent) shall
determine with its Purchaser Groups the number of such Purchasers (each, a
"Voting Block"), which shall be required to request or direct such Purchaser
Agent to take action, or refrain from taking action, under this Agreement on
behalf of such Purchasers. Such Purchaser Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of its appropriate Voting Block, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all of
such Purchaser Agent's Purchasers.
(d) Unless otherwise advised in writing by a Purchaser Agent or by any
Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party
to this Agreement may assume that (i) such Purchaser Agent is acting for the
benefit of each of the Purchasers in respect of which such Purchaser Agent is
identified as being the "Purchaser Agent" in the definition of "Purchaser Agent"
hereto, as well as for the benefit of each assignee or other transferee from any
such Person, and (ii) each action taken by such Purchaser Agent has been duly
authorized and approved by all necessary action on the part of the Purchasers on
whose behalf it is purportedly acting. Each initial Purchaser (or, with the
consent of all other Purchasers then existing, any other Purchasers) shall have
the right to designate a new Purchaser Agent (which may be itself) to act on its
behalf and on behalf of its assignees and transferees for purposes of this
Agreement by giving to the Agent written notice thereof signed by such
Purchaser(s) and the newly designated Purchaser Agent. Such notice shall be
effective when receipt thereof is acknowledged by the Agent, which
acknowledgment the Agent shall not unreasonably delay giving, and thereafter the
party named as such therein shall be Purchaser Agent for such Purchaser under
this Agreement. Each Purchaser Agent and its Purchaser(s) shall agree amongst
themselves as to the circumstances and procedures for removal and resignation of
such Purchaser Agent.
Section 8.5. Assumed Payments. Unless a Purchaser Agent shall have
received notice from the applicable Purchaser before the date of any Put or of
any Incremental Purchase that the applicable Purchaser will not make available
to the applicable Purchaser Agent the amount it is scheduled to remit as part of
such Put or Incremental Purchase, such Purchaser Agent may assume such Purchaser
has made such amount available to the Purchaser Agent when due (an "Assumed
Payment") and, in reliance upon such assumption, such Purchaser Agent may (but
shall have no obligation to) make available such amount to the appropriate
Person. If and to the extent that any Purchaser shall not have made its Assumed
Payment available to the applicable Purchaser Agent, such Purchaser and the
Seller hereby agree to pay the applicable Purchaser Agent forthwith on demand
such unpaid portion of such Assumed Payment up to the amount of funds actually
paid by the applicable Purchaser Agent, together with interest thereon for each
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day from the date of such payment by the Agent until the date the requisite
amount is repaid to the applicable Purchaser Agent, at a rate per annum equal to
the Federal Funds Rate plus 2%.
Section 8.6. Notice of Termination Events. Neither any Purchaser Agent
nor the Agent shall be deemed to have knowledge or notice of the occurrence of
any Potential Termination Event unless the Agent or such Purchaser Agent has
received notice from any Purchaser, Purchaser Agent or the Seller stating that a
Potential Termination Event has occurred hereunder and describing such Potential
Termination Event. In the event that the Agent receives such a notice, it shall
promptly give notice to each Purchaser Agent whereupon each Purchaser Agent
shall promptly give notice thereof to its Purchasers, Enhancement Banks and
Liquidity Banks. In the event that a Purchaser Agent receives such a notice
(other than from the Agent) it shall promptly give notice thereof to the Agent
and each of its affiliated Enhancement Banks and Liquidity Banks. The Agent
shall take such action concerning a Potential Termination Event as may be
directed by the Instructing Group (or, in the case where there are only two
Purchaser Groups and neither Purchaser Group has a majority of the Commitments,
either Purchaser Agent except if the proposed action is a waiver of the
consequences of the Potential Termination Event, in which case such waiver shall
require the consent of the Instructing Group) (or, if otherwise required for
such action, all of the Purchasers), but until the Agent receives such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, as the Agent deems advisable and in the best
interests of the Purchasers and the Purchaser Agents.
Section 8.7. Non-Reliance on Agent, Purchaser Agents and Other
Purchasers. Each Purchaser expressly acknowledges that none of the Agent, the
Purchaser Agents or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent or any Purchaser Agent hereafter
taken, including any review of the affairs of the Seller or any other applicable
Bergen Entity, shall be deemed to constitute any representation or warranty by
the Agent or Purchaser Agent, as applicable. Each Purchaser represents and
warrants to the Agent and the Purchaser Agents that, independently and without
reliance upon the Agent, their Purchase Agents or any other Purchaser and based
on such documents and information as it has deemed appropriate, it has made and
will continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, the other Bergen Entities, and the Receivables
and its own decision to enter into this Agreement and to take, or omit, action
under any Transaction Document. Except for items specifically required to be
delivered hereunder, the Agent shall not have any duty or responsibility to
provide any Purchaser Agent or Purchaser with any information concerning the
Seller, any other Bergen Entity or any of their Affiliates that comes into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
Section 8.8. Agent and Affiliates. Each of the Agent and the Purchaser
Agents and their respective Affiliates may extend credit to, accept deposits
from and generally engage in any kind of business with the Seller, any other
Bergen Entity or any of their Affiliates and Wachovia may exercise or refrain
from exercising its rights and powers as if it were not the Agent. With respect
to the acquisition of the Eligible Receivables pursuant to this Agreement, each
of the Purchaser Agents and the Agent shall have the same rights and powers
under this Agreement as any Purchaser and may exercise the same as though it
<PAGE>
were not such an agent, and the terms "Purchaser" and "Purchasers" shall include
each of the Purchaser Agents and the Agent in their individual capacities.
Section 8.9. Indemnification. Each Purchaser Group shall indemnify and
hold harmless the Agent and its officers, directors, employees, representatives
and agents (to the extent not reimbursed by the Seller or any other Bergen
Entity and without limiting the obligation of the Seller or any other Bergen
Entity to do so), ratably in accordance with its Ratable Share from and against
any and all liabilities, obligations, losses, damages, penalties, judgments,
settlements, costs, expenses and disbursements of any kind whatsoever (including
in connection with any investigative or threatened proceeding, whether or not
the Agent or such Person shall be designated a party thereto) that may at any
time be imposed on, incurred by or asserted against the Agent or such Person as
a result of, or related to, any of the transactions contemplated by the
Transaction Documents or the execution, delivery or performance of the
Transaction Documents or any other document furnished in connection therewith
(but excluding any such liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses or disbursements resulting solely from
the gross negligence or willful misconduct of the Agent or such Person as
finally determined by a court of competent jurisdiction).
Section 8.10. Successor Agent. The Agent may, upon at least five (5)
days notice to the Seller and each Purchaser and each Purchaser Agent, resign as
Agent. Such resignation shall not become effective until a successor agent is
appointed by an Instructing Group and has accepted such appointment. Upon such
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall succeed to and become vested with all the rights and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Transaction Documents. After any retiring
Agent's resignation hereunder, the provisions of Article VI and this Article
VIII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Agent.
Article IX
Miscellaneous
Section 9.1. Termination. Each Purchaser shall cease to be a party
hereto when the Termination Date has occurred, each Purchaser holds no
Investment and all amounts payable to it hereunder have been indefeasibly paid
in full. This Agreement shall terminate following the Termination Date when no
Investment is held by a Purchaser and all other amounts payable hereunder have
been indefeasibly paid in full, but the rights and remedies of the Agent, each
Purchaser Agent and each Purchaser under Article VI and Section 8.9 shall
survive such termination. Upon such termination, the Agent shall promptly after
request of the Seller (a) execute and deliver UCC-3 termination statements to
the Seller with respect to each UCC-1 financing statement filed in favor of the
Agent or any Purchaser in connection with this Agreement, (b) deliver written
notice to all Lock-Box Banks and Depositary Banks to remit to the Collection
Agent (unless otherwise directed by the Seller) all payments, remittances and
other items that have been received by, or are maintained in, any Lock-Box Bank,
Lock-Box, Lock-Box Account or Depositary Bank and to follow thereafter all
<PAGE>
directions of the Collection Agent (unless otherwise directed by the Seller)
with respect to the continuance of termination of such Lock-Boxes and Depositary
Accounts and (c) promptly deliver to the Collection Agent (unless otherwise
directed by the Seller) all Collections and all other funds, records or other
property of Seller or the Collection Agent that may come, or have come, into the
Agent's or any Purchaser's custody or control.
Section 9.2. Notices. Unless otherwise specified, all notices and
other communications hereunder shall be in writing (including by telecopier or
other facsimile communication), given to the appropriate Person at its address
or telecopy number set forth on the signature pages hereof or at such other
address or telecopy number as such Person may specify, and effective when
received at the address specified by such Person. Each party hereto, however,
authorizes the Agent or such Purchaser Agent's to act on telephone notices of
Purchases and Discount Rate and Tranche Period selections from any person the
Agent or such Purchaser Agent in good faith believes to be acting on behalf of
the relevant party and, at the Agent's or such Purchaser Agent's option, to tape
record any such telephone conversation. Each party hereto agrees to deliver
promptly to the Agent or such Purchaser Agent a confirmation of each telephone
notice given or received by such party (signed by an authorized officer of such
party), but the absence of such confirmation shall not affect the validity of
the telephone notice. The Agent's or such Purchaser Agent's records of all such
conversations shall be deemed correct and, if the confirmation of a conversation
differs in any material respect from the action taken by the Agent or such
Purchaser Agent, the records of the Agent or such Purchaser Agent shall govern
absent manifest error. The number of days for any advance notice required
hereunder may be waived (orally or in writing) by the Person receiving such
notice and, in the case of notices to the Agent or such Purchaser Agent, the
consent of each Person to which the Agent or such Purchaser Agent is required to
forward such notice.
Section 9.3. Payments and Computations. Notwithstanding anything
herein to the contrary, any amounts to be paid or transferred by the Seller or
the Collection Agent to, or for the benefit of, any Purchaser or any other
Person shall be paid or transferred to the Agent or appropriate Purchaser Agent,
as specified herein. All amounts to be paid or deposited hereunder shall be paid
or transferred on the day when due in immediately available Dollars (and, if due
from the Seller or Collection Agent, by 2:00 p.m. (Atlanta time), with amounts
received after such time being deemed paid on the Business Day following such
receipt). The Seller hereby authorizes the Agent to debit the Seller Account for
application to any amounts owed by the Seller hereunder. The Seller shall, to
the extent permitted by law, pay to each Purchaser Agent upon demand, for the
account of the applicable Person, interest on all amounts not paid or
transferred by the Seller or the Collection Agent when due hereunder at a rate
equal to the Prime Rate plus 2%, calculated from the date any such amount became
due until the date paid in full. Any payment or other transfer of funds
scheduled to be made on a day that is not a Business Day shall be made on the
next Business Day, and any Discount Rate or interest rate accruing on such
amount to be paid or transferred shall continue to accrue to such next Business
Day. All computations of interest, fees, and Discount shall be calculated for
the actual days elapsed based on a 360 day year.
Section 9.4. Sharing of Recoveries. Each Purchaser agrees that if it
receives any recovery, through set-off, judicial action or otherwise, on any
amount payable or recoverable hereunder in a greater proportion than should have
been received hereunder or otherwise inconsistent with the provisions hereof,
then the recipient of such recovery shall purchase for cash an interest in
<PAGE>
amounts owing to the other Purchasers (as return of Investment or otherwise),
without representation or warranty except for the representation and warranty
that such interest is being sold by each such other Purchaser free and clear of
any Adverse Claim created or granted by such other Purchaser, in the amount
necessary to create proportional participation by the Purchasers in such
recovery (as if such recovery were distributed pursuant to Section 2.3). If all
or any portion of such amount is thereafter recovered from the recipient, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
Section 9.5. Right of Setoff. During a Termination Event, each
Purchaser is hereby authorized (in addition to any other rights it may have) to
setoff, appropriate and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and any other
indebtedness held or owing by such Purchaser (including by any branches or
agencies of such Purchaser) to, or for the account of, the Seller against
amounts owing by the Seller hereunder (even if contingent or unmatured).
Section 9.6. Amendments. Except as otherwise expressly provided
herein, no amendment or waiver hereof shall be effective unless signed by the
Seller and the Instructing Group. In addition, no amendment of any Transaction
Document shall, without the consent of (a) all the Purchasers, (i) extend the
Termination Date or the date of any payment or transfer of Collections by the
Seller to the Collection Agent or by the Collection Agent to the Agent or any
Purchaser Agent, (ii) reduce the rate or extend the time of payment of Discount
for any Eurodollar Tranche or Prime Tranche, (iii) reduce or extend the time of
payment of any fee payable to the Purchasers, (iv) except as provided herein,
release, transfer or modify any Committed Purchaser's Purchase Interest or
change any Commitment, (v) amend the definition of Instructing Group,
Termination Event or Section 1.1, 1.2, 1.5, 1.7(a), 2.1, 2.2, 2.3, 7.2 or 9.6,
Article VI, Section 7.4 of the Purchase Agreement, the Limited Guaranty or any
obligation of any Bergen Entity thereunder, (vi) consent to the assignment or
transfer by the Seller or the Originator of any interest in the Receivables
other than transfers under the Transaction Documents or permit any Bergen Entity
to transfer any of its obligations under any Transaction Document except as
expressly contemplated by the terms of the Transaction Documents, or (vii) amend
any defined term relevant to the restrictions in clauses (i) through (vi) in a
manner which would circumvent the intention of such restrictions or (b) the
Agent and each affected Purchaser Agent, amend any provision hereof if the
effect thereof is to affect the indemnities to, or the rights or duties of, the
Agent or any Purchaser Agent or to reduce any fee payable for the Agent's own
account. Notwithstanding the foregoing, the amount of any fee or other payment
due and payable from the Seller or the Collection Agent to the Agent (for its
own account), any Purchaser Agent or any Purchaser may be changed or otherwise
adjusted solely with the consent of the Seller and the party to which such
payment is payable. Any amendment hereof shall apply to each Purchaser equally
and shall be binding upon the Seller, the Purchasers, the Purchaser Agents and
the Agent. If required by the Rating Agencies for the applicable Conduit
Purchaser, no material amendment hereof or assignment, termination, resignation
or removal hereunder shall be effective unless a statement is obtained from the
applicable Rating Agencies that its Rating will not be downgraded, withdrawn or
suspended as a result of such amendment assignment, termination, resignation or
removal.
<PAGE>
Section 9.7. Waivers. No failure or delay of the Agent, any Purchaser
Agent or any Purchaser in exercising any power, right, privilege or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right, privilege or remedy preclude any other or
further exercise thereof or the exercise of any other power, right, privilege or
remedy. Any waiver hereof shall be effective only in the specific instance and
for the specific purpose for which such waiver was given. After any waiver, the
Seller, the Purchasers the Purchaser Agents and the Agent shall be restored to
their former position and rights and any Potential Termination Event waived
shall be deemed to be cured and not continuing, but no such waiver shall extend
to (or impair any right consequent upon) any subsequent or other Potential
Termination Event. Any additional Discount that has accrued after a Termination
Event before the execution of a waiver thereof, solely as a result of the
occurrence of such Termination Event, may be waived by the Agent or related
Purchaser Agent at the direction of the Purchaser entitled thereto.
Section 9.8. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Except as otherwise provided herein, the Seller may not assign or
transfer any of its rights or delegate any of its duties without the prior
consent of the Agent, the Purchaser Agents and the Purchasers.
(b) Participations. Any Purchaser may sell to one or more Persons
(each a "Participant") participating interests in the interests of such
Purchaser hereunder and under the applicable Transfer Agreement. Such Purchaser
shall remain solely responsible for performing its obligations hereunder, and
the Seller, each Purchaser Agent and the Agent shall continue to deal solely and
directly with such Purchaser in connection with such Purchaser's rights and
obligations hereunder and under the Transfer Agreement. Each Participant shall
be entitled to the benefits of Article VI and shall have the right of setoff
through its participation in amounts owing hereunder to the same extent as if it
were a Purchaser hereunder and under the applicable Transfer Agreement, which
right of setoff is subject to such Participant's obligation to share with the
Purchasers as provided in Section 9.4. A Purchaser shall not agree with a
Participant to restrict such Purchaser's right to agree to any amendment hereto
or to the applicable Transfer Agreement, except amendments described in
clause (a) of Section 9.6.
(c) Assignments by Committed Purchasers. Any Committed Purchaser may
assign to one or more Persons ("Purchasing Committed Purchasers"), acceptable to
the applicable Purchaser Agent in its sole discretion and, prior to the
occurrence of a Termination Event, subject to the prior written consent of the
Seller (which consent will not be unreasonably withheld) any portion of its
Commitment as a Committed Purchaser hereunder and under the applicable Transfer
Agreement and Purchase Interest pursuant to a supplement hereto and to the
applicable Transfer Agreement (a "Transfer Supplement") in form satisfactory to
the applicable Purchaser Agent executed by each such Purchasing Committed
Purchaser, such selling Committed Purchaser and the applicable Purchaser Agent.
Any such assignment by a Committed Purchaser must be for an amount of at least
Ten Million Dollars. Each Purchasing Committed Purchaser shall pay a fee of
Three Thousand Dollars to the applicable Purchaser Agent. Any partial assignment
shall be an assignment of an identical percentage of such selling Committed
Purchaser Investment and its Commitment as a Committed Purchaser hereunder and
under any applicable Transfer Agreement. Upon the execution and delivery to the
applicable Purchaser Agent of the Transfer Supplement and payment by the
Purchasing Committed Purchaser to the selling Committed Purchaser of the agreed
<PAGE>
purchase price, such selling Committed Purchaser shall be released from its
future obligations hereunder and under the applicable Transfer Agreement to the
extent of such assignment and such Purchasing Committed Purchaser shall for all
purposes be a Committed Purchaser party hereto and shall have all the rights and
obligations of a Committed Purchaser hereunder to the same extent as if it were
an original party hereto and to the applicable Transfer Agreement with a
Commitment as a Committed Purchaser, any Investment and any related Assigned
Settlement described in the Transfer Supplement.
(d) Replaceable Related Bank Purchaser. If any Related Bank Purchaser
(a "Replaceable Purchaser") shall (i) petition the Seller for any amounts under
Section 6.2 or (ii) have a short-term debt rating lower than the "A-1" by S&P
and "P-1" by Moody's (unless such Related Bank Purchaser is also an Enhancement
Bank), the Seller or applicable Conduit Purchaser may designate a replacement
financial institution (a "Replacement Related Bank Purchaser") acceptable to the
applicable Purchaser Agent and the applicable Conduit Purchaser, in its sole
discretion and, prior to the occurrence of a Termination Event, subject to the
prior written consent of the Seller (which consent will not be unreasonably
withheld) to which such Replaceable Related Bank Purchaser shall, subject to its
receipt of an amount equal to its Investment, any related Assigned Settlement,
and accrued Discount and fees thereon (plus, from the Seller, any Early Payment
Fee that would have been payable if such transferred Investment had been paid on
such date) and all amounts payable under Section 6.2, promptly assign all of its
rights, obligations and Commitment hereunder and under the applicable Transfer
Agreement, together with all of its Purchase Interest, and any related Assigned
Settlement, to the Replacement Related Bank Purchaser in accordance with Section
9.8(c).
(e) Assignment by Conduit Purchasers. With the prior written consent
of the Seller (not to be unreasonably withheld), each other party hereto agrees
and consents (i) to each Conduit Purchaser's assignment, participation, grant of
security interests in or other transfers of any portion of not less than
$25,000,000 of, or any of its beneficial interest in, the Purchase Interest and
the related Assigned Settlement and (ii) to the complete assignment by such
Conduit Purchaser of all of its rights and obligations hereunder to any Person
reasonably acceptable to the Seller, and upon such assignment such Conduit
Purchaser shall be released from all obligations and duties hereunder. Each
Conduit Purchaser shall promptly notify each party hereto of any such
assignment. Upon such an assignment of any portion of a Conduit Purchaser's
Purchase Interest and the related Assigned Settlement, the assignee shall have
all of the rights of such Conduit Purchaser hereunder related to such Purchase
Interest and related Assigned Settlement.
(f) Opinions of Counsel. If required by any Purchaser Agent or to
maintain the Ratings, each Transfer Supplement must be accompanied by an opinion
of counsel of the assignee as to such matters as such Purchaser Agent may
reasonably request.
Section 9.9. Intended Tax Characterization. It is the intention of the
parties hereto that, for the purposes of all Taxes, the transactions
<PAGE>
contemplated hereby shall be treated as a loan by the Purchasers (through the
Agent) to the Seller that is secured by the Receivables (the "Intended Tax
Characterization"). The parties hereto agree to report and otherwise to act for
the purposes of all Taxes in a manner consistent with the Intended Tax
Characterization. As provided in Section 5.1(g), the Seller hereby grants to the
Agent, for the ratable benefit of the Purchaser Agents and the Purchasers, a
security interest in all Receivables and Collections to secure the payment of
all amounts other than Investment owing hereunder and (to the extent of the Sold
Interest) to secure the repayment of all Investment.
Section 9.10. Confidentiality. The parties hereto agree to hold the
Transaction Documents or any other confidential or proprietary information
received in connection therewith in confidence and agree not to provide any
Person with copies of any Transaction Document or such other confidential or
proprietary information other than to (i) any officers, directors, members,
managers, employees or outside accountants, auditors or attorneys thereof, (ii)
any prospective or actual assignee or participant which (in each case) has
signed a confidentiality agreement substantially in the form of the
confidentiality agreement signed by the Agent prior to the date hereof, (iii)
any rating agency, (iv) any surety, guarantor or credit or liquidity enhancer to
the Agent, any Purchaser Agent or any Purchaser which (in each case) has signed
a confidentiality agreement substantially in the form of the confidentiality
agreement, (v) any Conduit Purchaser's administrator, management company,
referral agents, issuing agents or depositaries or CP Dealers and (vi)
Governmental Authorities with appropriate jurisdiction. Notwithstanding the
above stated obligations, provided that the other parties hereto are given
notice of the intended disclosure or use, the parties hereto will not be liable
for disclosure or use of such information which such Person can establish by
tangible evidence: (i) was required by law, including pursuant to a valid
subpoena or other legal process, (ii) was in such Person's possession or known
to such Person prior to receipt or (iii) is or becomes known to the public
through disclosure in a printed publication (without breach of any of such
Person's obligations hereunder).
Section 9.11. Agreement Not to Petition. Each party hereto agrees, for
the benefit of the holders of the privately or publicly placed indebtedness for
borrowed money for any Conduit Purchaser, not, prior to the date which is one
(1) year and one (1) day after the payment in full of all such indebtedness, to
acquiesce, petition or otherwise, directly or indirectly, invoke, or cause any
Conduit Purchaser to invoke, the process of any Governmental Authority for the
purpose of (a) commencing or sustaining a case against any Conduit Purchaser
under any federal or state bankruptcy, insolvency or similar law (including the
Federal Bankruptcy Code), (b) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official for such Conduit
Purchaser, or any substantial part of its property, or (c) ordering the winding
up or liquidation of the affairs of such Conduit Purchaser.
Section 9.12. Excess Funds. Other than amounts payable under Section
9.4, such Conduit Purchaser shall be required to make payment of the amounts
required to be paid pursuant hereto only if such Conduit Purchaser has Excess
Funds (as defined below). If a Conduit Purchaser does not have Excess Funds, the
excess of the amount due hereunder (other than pursuant to Section 9.4) over the
amount paid shall not constitute a "claim" (as defined in Section 101(5) of the
Federal Bankruptcy Code) against such Conduit Purchaser until such time as such
Conduit Purchaser has Excess Funds. If a Conduit Purchaser does not have
sufficient Excess Funds to make any payment due hereunder (other than pursuant
<PAGE>
to Section 9.4), then such Conduit Purchaser may pay a lesser amount and make
additional payments that in the aggregate equal the amount of deficiency as soon
as possible thereafter. The term "Excess Funds" means the excess of (a) the
aggregate projected value of a Conduit Purchaser assets and other property
(including cash and cash equivalents), over (b) the sum of (i) the sum of all
scheduled payments of principal, interest and other amounts payable on publicly
or privately placed indebtedness of such Conduit Purchaser for borrowed money,
plus (ii) the sum of all other liabilities, indebtedness and other obligations
of such Conduit Purchaser for borrowed money or owed to any credit or liquidity
provider, together with all unpaid interest then accrued thereon, plus (iii) all
taxes payable by such Conduit Purchaser to the Internal Revenue Service, plus
(iv) all other indebtedness, liabilities and obligations of such Conduit
Purchaser then due and payable, but the amount of any liability, indebtedness or
obligation of such Conduit Purchaser shall not exceed the projected value of the
assets to which recourse for such liability, indebtedness or obligation is
limited. Excess Funds shall be calculated once each Business Day.
Section 9.13. No Recourse. The obligations of each Conduit Purchaser,
its management company, its administrator and its referral agents (each a
"Program Administrator") under any Transaction Document or other document (each,
a "Program Document") to which a Program Administrator is a party are solely the
corporate obligations of such Program Administrator and no recourse shall be had
for such obligations against any Affiliate, director, officer, member, manager,
employee, attorney or agent of any Program Administrator.
Section 9.14. Headings; Counterparts. Article and Section Headings in
this Agreement are for reference only and shall not affect the construction of
this Agreement. This Agreement may be executed by different parties on any
number of counterparts, each of which shall constitute an original and all of
which, taken together, shall constitute one and the same agreement.
Section 9.15. Cumulative Rights and Severability. All rights and
remedies of the Purchasers, Purchaser Agents and Agent hereunder shall be
cumulative and non-exclusive of any rights or remedies such Persons have under
law or otherwise. Any provision hereof that is prohibited or unenforceable in
any jurisdiction shall, in such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and without affecting such provision in any other
jurisdiction.
Section 9.16. Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the internal
laws (and not the law of conflicts) of the State of New York. The Seller hereby
submits to the nonexclusive jurisdiction of the united states district court for
the southern district of new york and of any new york state court sitting in new
york, new york for purposes of all legal proceedings arising out of, or relating
to, the Transaction Documents or the transactions contemplated thereby. The
Seller hereby irrevocably waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the venue of any such proceeding and
any claim that any such proceeding has been brought in an inconvenient forum.
Nothing in this Section 9.16 shall affect the right of the Agent, any Purchaser
<PAGE>
Agent or any Purchaser to bring any action or proceeding against the Seller or
its property in the courts of other jurisdictions.
Section 9.17. Waiver of Trial by Jury. To the extent permitted by
applicable law, each party hereto irrevocably waives all right of trial by jury
in any action, proceeding or counterclaim arising out of, or in connection with,
any transaction document or any matter arising thereunder.
Section 9.18. Entire Agreement. The Transaction Documents constitute
the entire understanding of the parties thereto concerning the subject matter
thereof. Any previous or contemporaneous agreements, whether written or oral,
concerning such matters are superseded thereby.
<PAGE>
RSA Wachovia/Blue Ridge Signature Page
In Witness Whereof, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
hereof.
Wachovia Bank, N.A., as the Related Bank Purchaser
for Blue Ridge, as the Blue Ridge Purchaser Agent
and as the Agent
By/s/Kevin McConnell
Title Senior Vice President
Address: 191 Peachtree Street, N.E.__
Atlanta, GA 30303
____________________________________
Attention:__________________________
Telephone: 404-332-4362
Telecopy: 404-333-5152
Blue Ridge Asset Funding Corporation, as
a Conduit Purchaser
By: Wachovia Bank, N.A.,
as attorney-in-fact
By /s/Brian Mellone
Title Assistant Vice President
Address: c/o191 Peachtree Street, N.E.__
Atlanta, GA 30303
____________________________________
Attention:__________________________
Telephone: 404-332-4019
Telecopy: 404-333-5152
<PAGE>
RSA Bergen Brunswig Signature Page
Blue Hill, Inc.,
as Seller
By /s/ Neil F. Dimick
Title Chief Financial Officer
Address: ____________________________________
____________________________________
____________________________________
Attention:__________________________
Telephone: ____________________________________
Telecopy: ____________________________________
Bergen Brunswig Drug Company
as Initial Collection Agent
By /s/ Neil F. Dimick
Title Chief Financial Officer
Address: ____________________________________
____________________________________
____________________________________
Attention:__________________________
Telephone: ____________________________________
Telecopy: ____________________________________
<PAGE>
I-16
Schedule I
Definitions
The following terms have the meanings set forth, or referred to,
below:
"Adverse Claim" means, for any asset or property of a Person, a lien,
security interest, charge, mortgage, pledge, hypothecation, assignment or
encumbrance, or any other right or similar claim, in, of or on such asset or
property in favor of any other Person, except those created by the Transaction
Documents.
"Affiliate" means, for any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. For purposes of this definition, "control" means the power,
directly or indirectly, to either (i) vote ten percent (10%) or more of the
securities having ordinary voting power for the election of directors of a
Person or (ii) cause the direction of the management and policies of a Person.
"Agent" is defined in the first paragraph hereof.
"Aggregate Commitment" means the aggregate of all Commitments of each
Purchaser Group, as such amount may be reduced pursuant to Section 1.6.
"Aggregate Investment" means the sum of the Investments of all
Purchasers.
"Aggregate Reserve" means, at any time at which such amount is
calculated, the sum of the Loss Reserve, Dilution Reserve and Discount Reserve.
"Applicable Margins" refers to each such term as defined in each of
the Credit Agreements, as such term may be amended in either Credit Agreement
from time to time; provided, if both the Credit Agreements shall be terminated,
then the term "Applicable Margin" shall have the same meaning such term had in
the Credit Agreement most recently terminated immediately prior to such
termination.
"Assigned Conduit Purchaser Settlement" means, for each Related Bank
Purchaser for a Conduit Purchaser for any Put, the product of such Related Bank
Purchaser's Purchased Percentage and the amount of the Conduit Purchaser
Settlement being transferred pursuant to such Put.
"Bankruptcy Event" means, for any Person, that (a) such Person makes a
general assignment for the benefit of creditors or any proceeding is instituted
by or against such Person seeking to adjudicate it bankrupt or insolvent, or
seeking the liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property or (b) such
Person takes any corporate action to authorize any such action.
<PAGE>
"Bergen Entity" means the Parent and the Originator.
"Blue Ridge" is defined in the first paragraph hereof.
"Blue Ridge Committed Purchasers" means the Related Bank Purchasers
for Blue Ridge.
"Blue Ridge Purchaser Agent" means Wachovia Bank, N.A.
"Blue Ridge Purchaser Group" means Blue Ridge and the Blue Ridge
Committed Purchasers.
"Business Day" means any day other than (a) a Saturday, Sunday or
other day on which banks in New York City, New York or Atlanta, Georgia are
authorized or required to close, (b) a holiday on the Federal Reserve calendar
and, (c) solely for matters relating to a Eurodollar Tranche, a day on which
dealings in Dollars are not carried on in the London interbank market.
"Charge-Off" means any Receivable that has or should have been (in
accordance with the Credit and Collection Policy) charged off or written off by
the Seller.
"Collection" means any amount paid, or deemed paid, on a Receivable or
by the Seller as a Deemed Collection under Section 1.5(b).
"Collection Agent" is defined in Section 3.1(a).
"Collection Agent Fee" is defined in Section 3.6.
"Collection Agent Replacement Event" means the occurrence of any one
or more of the following:
(a) the Collection Agent (or any sub-collection agent) fails to
observe or perform any material term, covenant or agreement under any
Transaction Document and such failure continues after any applicable notice
or cure period;
(b) any written representation, warranty, certification or
statement made by the Collection Agent in, or pursuant to, any Transaction
Document proves to have been incorrect in any material adverse respect when
made;
(c) the Collection Agent suffers a Bankruptcy Event; or
(d) an "Event of Default" shall have occurred and is continuing
under either Credit Agreement.
"Commitment" means, for each Committed Purchaser, the amount set forth
on Schedule II for such Committed Purchaser, and, for each Purchaser Group, the
amount set forth on Schedule II for such Purchaser Group, in each case, as
adjusted in accordance with Sections 1.6 and 9.8.
<PAGE>
"Commitment Percentage" means, for each Related Bank Purchaser in a
Purchaser Group, such Related Bank Purchaser's Commitment divided by the total
of all Commitments of all Related Bank Purchasers in such Purchaser Group.
"Committed Purchasers" means the Related Bank Purchaser for all
Purchaser Groups.
"Concentration Limit" means, with respect to any Obligor, the
percentage of the Eligible Receivable Balance set forth in the table below based
upon the short term unsecured debt rating (or, in the absence of such a rating,
the equivalent long term unsecured senior debt rating) currently assigned to
them by either S&P or Moody's, (and, if such Obligor is rated by both agencies
and has a split rating (except for an A-1+/P-1 rating), the applicable rating
will be the lower of the two), (or, if larger, the Special Limit applicable to
such Obligor):
- --------------------------------------------------------------------------------
S&P Rating Moody's Rating Allowable % of
Eligible Receivables
- --------------------------------------------------------------------------------
A-1+ 10%
- --------------------------------------------------------------------------------
A-1 P-1 8%
- --------------------------------------------------------------------------------
A-2 P-2 6%
- --------------------------------------------------------------------------------
A-3 P-3 3%
- --------------------------------------------------------------------------------
Below A-3 or Not Rated Below P-3 or Not Rated by
by either S&P or Moody' either S&P or Moody's 2%
- --------------------------------------------------------------------------------
"Conduit Purchaser" means each of Blue Ridge and any other Person
designated as such that from time to time becomes a party hereto.
"Conduit Purchaser Investment Percentage" means a fraction, expressed
as a decimal, obtained by dividing the Investment of a Conduit Purchaser by the
Investment of all Purchasers.
"Conduit Purchaser Settlement" means the sum of all claims and rights
to payment pursuant to Section 1.5 or 1.7 or any other provision owed to a
Conduit Purchaser (or owed to the Agent or Purchaser Agent or the Collection
Agent for the benefit of a Conduit Purchaser) by the Seller that, if paid, would
be applied to reduce Investment.
"Coverage Ratio" means, as of any time, (a) the sum of the Aggregate
Investment plus Aggregate Reserve divided by (b) the Net Receivables Balance.
"CP Dealer" means, at any time for any Conduit Purchaser, each Person
such Conduit Purchaser then engages as a placement agent or commercial paper
dealer.
<PAGE>
"CP Discount" means, (i) with respect to Blue Ridge, the difference
between (x) the Face Amount of any commercial paper note of Blue Ridge and (y)
the proceeds received by the Purchaser with respect to such commercial paper
note and (ii) with respect to any other Conduit Purchaser, the amount specified
in the Rate Supplement for the relevant Purchaser Group.
"CP Rate" means (a) for the Blue Ridge Purchaser Group, CP Rate means,
with respect to any CP Tranche Period applicable to the Blue Ridge Purchaser
Group, the rate equivalent to the rate (or if more than one rate, the weighted
average of the rates) at which commercial paper notes having a term equal to
such CP Tranche Period are sold plus the amount of any placement agent or
commercial paper dealer fees incurred in connection with such sale; provided,
however, if the rate (or rates) is a discounted rate (or rates), the "CP Rate"
for such CP Tranche Period shall be the rate (or, if more than one rate, the
weighted average of the rates) resulting from converting such discount rate (or
rates) to an interest-bearing equivalent rate and (b) for any other Conduit
Purchaser, the rate designated as such in the Rate Supplement for the relevant
Purchaser Group.
"Credit Agreements" means, collectively, that certain (i) Amended and
Restated Credit Agreement dated as of September 30, 1994 by and among the
Originator and the Parent, as Borrowers, certain financial institutions, as the
Lenders, and Bank of America, N.A. ("BofA"), as Agent for the Lenders, as has
been amended and as may be amended, restated, substituted or replaced from time
to time, and (ii) Credit Agreement dated as of April 23, 1999 by and among the
Originator and the Parent, as Borrowers, certain financial institutions named
therein, as the Lenders, BofA, as Administrative Agent, Chase Securities Inc.,
as Syndication Agent and Wachovia, as Documentation Agent as has been amended
and as may be amended, restated, substituted or replaced from time to time.
"Credit Agreement Margin" means the higher of the Applicable Margins.
"Credit and Collection Policy" means the Seller's credit and
collection policy and practices relating to Receivables attached hereto as
Exhibit I.
"Deemed Collections" is defined in Section 1.5(c).
"Default Proxy Ratio" means, a fraction (expressed as a percentage),
for any calendar month (the "Measurement Month"), the numerator of which is the
aggregate outstanding balance as of the end of such Measurement Month of all
Defaulted Receivables less than 90 days past the due date plus the aggregate
outstanding balance as of the end of such Measurement Month of all Receivables
less than 61 days past due that have been Charge-Offs and the denominator of
which is the amount of sales generated during the month that ended three months
prior to the last day of such Measurement Month.
"Default Ratio" means the ratio (expressed as a percentage) for any
calendar month of (a) the sum of the outstanding balances of all Defaulted
Receivables at the end of each of the most recently completed three calendar
months to (b) the sum of the outstanding balances of all Receivables at the end
of each such calendar month.
<PAGE>
"Defaulted Receivable" means any Receivable (a) on which any amount is
unpaid more than 60 days past its original due date or (b) the Obligor on which
has suffered a Bankruptcy Event.
"Delinquency Ratio" means, the ratio (expressed as a percentage), for
any calendar month of (a) the aggregate outstanding balance of all Delinquent
Receivables as of the end of the most recently completed three calendar month
period to (b) the sum of the aggregate outstanding balance of all Receivables as
of the end of such period.
"Delinquent Receivable" means any Receivable (other than a Charge-Off
or Defaulted Receivable) on which any amount is unpaid more than 30 days past
its original due date.
"Depositary Account" means each account maintained by the Collection
Agent at a Depositary Bank for the purpose of receiving or concentrating
Collections.
"Depositary Account Agreement" means each agreement between the
Collection Agent and a Depositary Bank concerning a Depositary Account.
"Depositary Account Letter" means a letter in substantially the form
of Exhibit G-2 (or otherwise acceptable to the Agent) from the Seller and the
Collection Agent to each Depositary Bank, acknowledged and accepted by such
Depositary Bank and the Agent.
"Depositary Bank" means each bank listed as such on Exhibit F as
revised pursuant to Section 5.1(i).
"Designated Financial Officer" means the chief financial officer of
the Seller or the other relevant Bergen Entity, as applicable.
"Dilution Ratio" means, the ratio (expressed as a percentage), for any
period, of (a) the aggregate amount of payments owed by the Seller pursuant to
the first sentence of Section 1.5(b) for such period to (b) the aggregate amount
of Collections received during such period.
"Dilution Reserve" means, at any time, the product of (a) the greater
of (i) 6%, and (ii) three times the highest Dilution Ratio (expressed as a
decimal) as of the last day of each of the most recently completed twelve full
calendar months for which a Periodic Report is required to have been delivered
multiplied by (b) the Net Receivables Balance at such time.
"Discount" means, for any Tranche Period, (a) the product of (i) the
Discount Rate for such Tranche Period, (ii) the total amount of Investment
allocated to the Tranche Period, and (iii) the number of days elapsed during the
Tranche Period divided by (b) 360 days.
"Discount Rate" means, (i) for any Tranche Period relating to a CP
Tranche, the CP Rate applicable thereto, (ii) for any Tranche Period relating to
a Eurodollar Tranche, the Eurodollar Rate applicable thereto and (iii) for any
Tranche Period relating to a Prime Tranche, the Prime Rate applicable thereto.
<PAGE>
"Discount Reserve" means, at any time, the product of (a) 1.5
multiplied by (b) the rate announced by Wachovia as its "Prime Rate" (which may
not be its best or lowest rate) plus 2.00% multiplied by (c) Aggregate
Investment multiplied by (d) a fraction, the numerator of which is the higher of
(i) 30 and (ii) the average of the Turnover Ratios calculated for the most
recent three calendar months for which Periodic Reports were required to be
delivered and the denominator of which is 360.
"Dollar" and "$" means lawful currency of the United States of
America.
"Early Payment Fee" means, if any Investment of a Purchaser allocated
(or, in the case of a requested Purchase not made by the Committed Purchasers
for any reason other than their default, scheduled to be allocated) to a Tranche
Period for a CP Tranche or Eurodollar Tranche is reduced or terminated before
the last day of such Tranche Period (the amount of Investment so reduced or
terminated being referred to as the "Prepaid Amount"), the cost to the relevant
Purchaser of terminating or reducing such Tranche, which (a) for a CP Tranche
means any compensation payable in prepaying the related commercial paper or, if
not prepaid, any shortfall between the amount that will be available to a
Conduit Purchaser, on the maturity date of the related commercial paper from
reinvesting the Prepaid Amount in Permitted Investments and the Face Amount of
such commercial paper and (b) for a Eurodollar Tranche will be determined based
on the difference between the LIBOR applicable to such Tranche and the LIBOR
applicable for a period equal to the remaining maturity of the Tranche on the
date the Prepaid Amount is received.
"Eligible Receivable" means, at any time, any Receivable:
(i) the Obligor of which (a) is a resident of, or organized under
the laws of, or with its chief executive office in, the USA; (b) is not an
Affiliate of any of the parties hereto or the Originator; (c) is not a
government or a governmental subdivision or agency; and (d) has not
suffered a Bankruptcy Event;
(ii) which is stated to be due and payable within 30 days after
the statement date therefor;
(iii) which is not a Defaulted Receivable or a Charge-Off;
(iv) which is an "account" or "chattel paper" within the meaning
of Section 9-105 and Section 9-106, respectively of the UCC of all
applicable jurisdictions;
(v) which is denominated and payable only in Dollars in the USA;
(vi) which arises under a contract that is in full force and
effect and constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance with its
terms subject to no offset, counterclaim, defense or other Adverse Claim,
and is not an executory contract or unexpired lease within the meaning of
Section 365 of the Bankruptcy Code;
<PAGE>
(vii) which arises under a contract that (a) contains an
obligation to pay a specified sum of money and is subject to no
contingencies and (b) does not require the Obligor under such contract to
consent to the transfer, sale or assignment of any receivable or right to
payment arising under such contract;
(viii) which does not, in whole or in part, contravene any law,
rule or regulation applicable thereto (including, without limitation, those
relating to usury, truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy);
(ix) which satisfies all applicable requirements of the Credit
and Collection Policy and was generated in the ordinary course of the
Originator's business from the sale of goods or provision of services to a
related Obligor solely by the Originator; and
(x) which does not constitute an interest in or claim in or under
any policy of insurance pursuant to 9-104(g) of the UCC.
"Eligible Receivables Balance" means, at any time, the aggregate
outstanding principal balance of all Eligible Receivables.
"Enhancement Bank" means any Person providing credit support to a
Purchaser for such Purchaser's account, including pursuant to an unfunded
commitment.
"Eurodollar Rate" means for any Committed Purchaser, for any Tranche
Period for a Eurodollar Tranche, the sum of (a) LIBOR for such Tranche Period
divided by 1 minus the "Reserve Requirement" plus (b) the sum of 0.60% and the
Credit Agreement Margin plus the additional margin, if any, provided for in the
Fee Letter, plus (c) during the pendency of a Termination Event, 2.00%; where
"Reserve Requirement" means, for any Tranche Period for a Eurodollar Tranche,
the maximum reserve requirement imposed during such Tranche Period on
"eurocurrency liabilities" as currently defined in Regulation D of the Board of
Governors of the Federal Reserve System.
"Excluded Taxes" means and includes any of the following Taxes: (a)
any Taxes imposed by any jurisdiction in which a Person is organized, does
business or maintains a permanent establishment solely by virtue of such
organization, business or maintenance of a permanent establishment, (b) any
Taxes on, or measured by, the overall net income of a Person; (c) any Taxes that
would not be imposed if a Person were a "United States person" as defined in
section 7701(a)(30) of the Internal Revenue Code of 1986, as amended and (d) any
withholding taxes, to the extent that the relevant Person is eligible to claim a
reduction in or exclusion from such withholding taxes under applicable statute
or tax treaties in effect at the time such withholding taxes are imposed.
"Face Amount" means the face amount of any commercial paper issued by
a Conduit Purchaser on a discount basis or, if not issued on a discount basis,
the principal amount of such note and interest scheduled to accrue thereon to
its stated maturity.
<PAGE>
"Federal Funds Rate" means for any day the greater of (i) the highest
rate per annum as determined by any Purchaser Agent at which overnight Federal
funds are offered to such Purchaser Agent for such day by major banks in the
interbank market, and (ii) if any Purchaser Agent is borrowing overnight funds
from a Federal Reserve Bank that day, the highest rate per annum at which such
overnight borrowings are made on that day. Each determination of the Federal
Funds Rate by a Purchaser Agent shall be conclusive and binding on the Seller
except in the case of manifest error and shall be reported to the Agent.
"Fee Letter" means, for each Purchaser Group the letter agreement
dated as of the date hereof among the Seller and the Purchaser Agent for the
applicable Purchaser Group.
"Funding Agreement" means any agreement or instrument executed by a
Purchaser and executed by or in favor of any Funding Source or executed by any
Funding Source at the request of a Purchaser.
"Funding Source" means any Enhancement Bank, Liquidity Bank or other
insurance company, bank or other financial institution providing liquidity,
back-up purchase or credit for any Conduit Purchaser.
"GAAP" means generally accepted accounting principles in the USA,
applied on a consistent basis.
"Governmental Authority" means any (a) Federal, state, municipal or
other governmental entity, board, bureau, agency or instrumentality, (b)
administrative or regulatory authority (including any central bank or similar
authority) or (c) court, judicial authority or arbitrator, in each case, whether
foreign or domestic.
"Incremental Purchase" is defined in Section 1.1(b).
"Initial Collection Agent" is defined in the first paragraph hereof.
"Instructing Group" means the Purchaser Agents representing Purchaser
Groups with a majority of the Commitments.
"Intended Tax Characterization" is defined in Section 9.9.
"Interim Liquidation" means any time before the Termination Date
during which no Reinvestment Purchases are made by any Purchaser, as established
pursuant to Section 1.2.
"Investment" means, for each Purchaser, (a) the sum of (i) all
Incremental Purchases by such Purchaser and (ii) the aggregate amount of any
payments or exchanges made by, or on behalf of, such Purchaser to any other
Purchaser to acquire Investment from such other Purchaser minus (b) all
Collections, amounts received from other Purchasers and other amounts received
or exchanged and, in each case, applied by the Agent or such Purchaser to reduce
such Purchaser's Investment. A Purchaser's Investment shall be restored to the
extent any amounts so received or exchanged and applied are rescinded or must be
returned for any reason.
<PAGE>
"LIBOR" means, with respect to any Committed Purchaser, for any
Tranche Period for a Eurodollar Tranche or other time period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in Dollars for a period equal to such Tranche
Period or other period, which appears on Page 3750 of the Telerate Service (or
any successor page or successor service that displays the British Bankers'
Association Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) two Business Days before the commencement of such Tranche
Period or other period. If for any Tranche Period for a Eurodollar Tranche no
such displayed rate is available (or, for any other period, if such displayed
rate is not available or the need to calculate LIBOR is not notified to the
Purchaser Agent for such Committed Purchaser at least three Business Days before
the commencement of the period for which it is to be determined), such Purchaser
Agent shall determine such rate based on the rates such Purchaser Agent is
offered deposits of such duration in the London interbank market.
"Liquidation Period" means, for a Conduit Purchaser, all times when
such Conduit Purchaser is not making Reinvestment Purchases pursuant to
Section 1.1(d) and, for all Purchasers, all times (x) during an Interim
Liquidation and (y) on and after the Termination Date.
"Liquidity Bank" means any commercial lending institution that is at
any time a Purchaser or purchaser under any Transfer Agreement.
"Lock-Box" means each post office box or bank box listed on Exhibit F,
as revised pursuant to Section 5.1(i).
"Lock-Box Account" means each account maintained by the Collection
Agent at a Lock-Box Bank for the purpose of receiving or concentrating
Collections.
"Lock-Box Agreement" means each agreement between the Collection Agent
and a Lock-Box Bank concerning a Lock-Box Account.
"Lock-Box Bank" means each bank listed as such on Exhibit F, as
revised pursuant to Section 5.1(i).
"Lock-Box Letter" means a letter in substantially the form of Exhibit
G (or otherwise acceptable to the Agent) from the Seller and the Collection
Agent to each Lock-Box Bank, acknowledged and accepted by such Lock-Box Bank and
the Agent.
"Loss Horizon Ratio" means, at any time, a fraction (expressed as a
ratio) the numerator of which is the aggregate outstanding balance of
Receivables generated by the Originator during the most recent three month
period and the denominator of which is the Net Receivables Balance as of the
last day of such period.
"Loss Reserve" means, at any time, the product of (i) the greater of
(a) 10% and (b) two times the product of the highest average Default Proxy Ratio
for any consecutive three month period ended during the previous 12 months
multiplied by the Loss Horizon Ratio calculated at the end of such period
multiplied by (ii) the Net Receivables Balance at such time.
<PAGE>
"Loss-to-Liquidation Ratio" means, for any calendar month, the ratio
(expressed as a percentage) of the outstanding balance of Charge-Offs made
during the most recent three calendar month period to the aggregate amount of
Collections during such three month period.
"Material Adverse Effect" means a material adverse effect on the
collectibility of the Receivables, taken as a whole, or the Seller's or any
other Bergen Entity's financial condition, business, operations or prospects or
ability to perform its obligations under any Transaction Document.
"Matured Aggregate Investment" means, at any time, the Matured Value
of a Conduit Purchaser's Investment plus the total Investments of all other
Purchasers then outstanding.
"Matured Value" means, of any Investment, the sum of such Investment
and all unpaid Discount scheduled to become due (whether or not then due) on
such Investment during all Tranche Periods to which any portion of such
Investment has been allocated.
"Maximum Incremental Purchase Amount" means, at any time, the lesser
of (a) the difference between the Purchase Limit and the Aggregate Investment
then outstanding and (b) the difference between the Aggregate Commitment and the
Matured Aggregate Investment then outstanding.
"Moody's" means Moody's Investors Service, Inc.
"Net Receivables Balance" means the Eligible Balance less the amount
by which the Eligible Receivables Balance exceeds the Concentration Limits for
all Obligors.
"Obligor" means, for any Receivable, each Person obligated to pay such
Receivable and each guarantor of such obligation.
"Originator" means Bergen Brunswig Drug Company, a California
corporation.
"Parent" means Bergen Brunswig Corporation, a New Jersey corporation.
"Periodic Report" is defined in Section 3.3.
"Permitted Investments" shall mean (a) evidences of indebtedness,
maturing not more than thirty (30) days after the date of purchase thereof,
issued by, or the full and timely payment of which is guaranteed by, the full
faith and credit of, the federal government of the United States of America, (b)
repurchase agreements with banking institutions or broker-dealers that are
registered under the Securities Exchange Act of 1934 fully secured by
obligations of the kind specified in clause (a) above, (c) money market funds
denominated in Dollars rated not lower than A-1 (and without the "r" symbol
attached to any such rating) by S&P and P-1 by Moody's or otherwise acceptable
to the Rating Agencies or (d) commercial paper denominated in Dollars issued by
any corporation incorporated under the laws of the United States or any
political subdivision thereof, provided that such commercial paper is rated at
least A-1 (and without any "r" symbol attached to any such rating) thereof by
S&P and at least Prime-1 thereof by Moody's.
<PAGE>
"Person" means an individual, partnership, corporation, association,
joint venture, Governmental Authority or other entity of any kind.
"Potential Termination Event" means any Termination Event or any event
or condition that with the lapse of time or giving of notice, or both, would
constitute a Termination Event.
"Pricing Letter" means the (i) for the Blue Ridge Purchaser Group
letter agreement dated as of the date hereof among the Liquidity Banks for Blue
Ridge, the Blue Ridge Purchaser Agent and the Seller and (ii) for any other
Purchaser Group, a letter agreement among the Liquidity Banks for such Purchaser
Group, its Purchaser Agent and the Seller.
"Prime Rate" means for any period, the daily average during such
period of (a) the greater of (i)(x) for the Blue Ridge Purchaser Group, that
interest rate denominated and set by Wachovia as its "Prime Rate" from time to
time as an interest rate basis for borrowings, and (y) for any other Purchaser
Group, the rate set forth as its Purchaser Agents "prime rate" or equivalent in
such Purchaser Group's Rate Supplement, plus in the case of either (x) or (y)
0.60% per annum, and (ii) the Federal Funds Rate plus 0.50% plus (b) during the
pendency of a Termination Event, 2.00% per annum. The Prime Rate for the Blue
Ridge Purchaser Group is but one of several interest rate basis used by
Wachovia. Wachovia lends at interest rates above and below the Prime Rate.
"Purchase" is defined in Section 1.1(a).
"Purchase Agreement" means the Purchase and Sale Agreement dated as of
the date hereof between the Seller and the Originator.
"Purchase Amount" means, for each Purchaser, (a) the sum of (i) all
Investment by such Purchaser and (ii) the aggregate amount of any payments or
exchanges made by, or on behalf of, such Purchaser to any other Purchaser
pursuant to Article II minus (b) all Collections, amounts received from any
Purchasers, and other amounts received or exchanged and, in each case, applied
by the Agent or such Purchaser to reduce such Purchaser's Purchase Amount. A
Purchaser's Purchase Amount shall be restored to the extent any amounts so
received or exchanged and applied are rescinded or must be returned for any
reason.
"Purchase Date" is defined in Section 1.1(c).
"Purchase Interest" means, for a Purchaser, the percentage ownership
interest in the Receivables and Collections held by such Purchaser, calculated
when and as described in Section 1.1(a); provided, however, that (except for
purposes of computing a Purchase Interest or the Sold Interest in Section 1.5 or
1.7) at any time the Sold Interest would otherwise exceed 100% each Purchaser
then holding any Investment shall have its Purchase Interest reduced by
multiplying such Purchase Interest by a fraction equal to 100% divided by the
Sold Interest otherwise then in effect, so that the Sold Interest is thereby
reduced to 100%.
"Purchase Limit" means $200,000,000.
<PAGE>
"Purchased Percentage" means, for any Put, for each Committed
Purchaser, its Commitment Percentage or such lesser percentage as is necessary
to prevent the Purchase Price of such Purchaser from exceeding its Unused
Commitment.
"Purchaser Agent" means Blue Ridge Purchaser Agent or any other person
who becomes a party to this Agreement as a "Purchaser Agent."
"Purchaser Group" means, for each Conduit Purchaser, such Conduit
Purchaser, its Related Bank Purchasers, (if any) and its related Liquidity Banks
and Enhancement Banks.
"Purchaser Reserve Percentage" means, for each Purchaser, the Reserve
Percentage multiplied by a fraction, the numerator of which is such Purchaser's
outstanding Investment and the denominator of which it the Aggregate Investment.
"Purchasers" means the Conduit Purchasers and the Related Bank
Purchasers.
"Put" is defined in Section 2.1(a).
"Ratable Share" means, for each Purchaser Group, such Purchaser
Group's aggregate Commitments divided by the aggregate Commitments of all
Purchaser Groups.
"Rate Supplement" means, for each Purchaser Group that becomes a party
hereto after the date hereof, a Rate Supplement among the members of such
Purchaser Group, the Seller and the Agent.
"Rating Agency" means, for any Conduit Purchaser, Moody's, S&P and any
other rating agency such Conduit Purchaser chooses to rate its commercial paper
notes.
"Ratings" means, for any Conduit Purchaser, the ratings by the Rating
Agencies of such Conduit Purchase of the indebtedness for borrowed money of such
Conduit Purchaser.
"Receivable" means each obligation of an Obligor to pay for
merchandise sold or services rendered by the Originator and transferred to the
Seller pursuant to the Purchase Agreement and includes the Originator's rights
to payment of any interest or finance charges and all proceeds of the foregoing.
During any Interim Liquidation and on and after the Termination Date, the term
"Receivable" shall only include such receivables existing on the date such
Interim Liquidation commenced or Termination Date occurred, as applicable.
Deemed Collections shall reduce the outstanding balance of Receivables
hereunder, so that any Receivable that has its outstanding balance deemed
collected shall cease to be a Receivable hereunder after (x) the Collection
Agent receives payment of such Deemed Collections under Section 1.5(b) or (y) if
such Deemed Collection is received before the Termination Date, an adjustment to
the Sold Interest permitted by Section 1.5(c) is made.
"Records" means, for any Receivable, all contracts, books, records and
other documents or information (including computer programs, tapes, disks,
<PAGE>
software and related property and rights) relating to such Receivable or the
related Obligor to the extent it relates to such Receivable.
"Reinvestment Purchase" is defined in Section 1.1(b).
"Related Bank Purchasers" means the Persons listed as such (and their
respective Purchase Commitments) for each Conduit Purchaser as listed on
Schedule II hereto.
"Related Security" means all of the Originator's rights in the
merchandise (including returned goods) and contracts relating to the
Receivables, all security interests, guaranties and property securing or
supporting payment of the Receivables, all Records and all proceeds of the
foregoing.
"Reserve Percentage" means, at any time, the quotient obtained by
dividing (a) the Aggregate Reserve by (b) the Eligible Receivables Balance.
"Seller" is defined in the first paragraph hereof.
"Seller Account" means the Seller's account designated by the Seller
to the Agent in writing.
"Settlement Date" means the 20th day of each calendar month, or if
such day is not a Business Day, the next succeeding Business Day.
"Significant Subsidiary" refers to such term as defined in each Credit
Agreement, as such term may be amended from time to time; provided, if the
Credit Agreements shall be terminated, then the term "Significant Subsidiary"
shall have the same meaning such term had immediately prior to such termination.
"Sold Interest" is defined in Section 1.1(a).
"Special Limit" means, (i) for National Rx, Inc., a wholly owned
subsidiary of Merck-Medco Managed Care, Inc., a wholly owned subsidiary of Merck
& Co., Inc., 15% of the Eligible Receivables Balance, provided, however, that
such Special Limit shall be automatically deemed revoked (A) at the time, if
any, when Merck & Co., Inc. ceases to have a short-term unsecured senior debt
rating of higher than "A-2" from S&P and a short-term unsecured senior debt
rating of higher than "P-2" from Moody's or (B) National Rx, Inc. shall cease at
any time to be, directly or indirectly, a wholly owned subsidiary of Merck &
Co., Inc., (ii) for Longs Drug Stores Corporation ("Longs"), 10% of the Eligible
Receivables Balance; provided, however, that such Special Limit shall be
automatically deemed revoked of the time, if any, when the sum of Delinquent
Receivables and Defaulted Receivables to Longs exceeds 50% of the total
outstanding balance of Receivables to Longs, unless in the case of either (i) or
(ii), the Agent, at the direction of the Instructing Group, notifies the Seller
of a different limit and (iii) such other "Special Limits" as shall be agreed to
in writing by the Instructing Group for other Obligors from time to time and
approved by the required Rating Agencies.
<PAGE>
"S&P" means Standard & Poor's Ratings Group.
"Subordinated Note" means each revolving promissory note issued by the
Seller to the Originator under the Purchase Agreement.
"Taxes" means all taxes, charges, fees, levies or other assessments
(including income, gross receipts, profits, withholding, excise, property,
sales, use, license, occupation and franchise taxes and including any related
interest, penalties or other additions) imposed by any jurisdiction or taxing
authority (whether foreign or domestic).
"Termination Date" means the earliest of (a) the Business Day
designated by the Seller with no less than thirty (30) Business Days prior
notice to the Agent, (b) the occurrence of a Termination Event and (c) December
11, 2000.
"Termination Event" means the occurrence of any one or more of the
following:
(a) any representation, warranty, certification or statement made
by the Seller or any other Bergen Entity in, or pursuant to, any
Transaction Document proves to have been incorrect in any material respect
when made (including pursuant to Section 7.2); or
(b) the Collection Agent or any other Bergen Entity fails to make
any payment or other transfer of funds hereunder when due (including any
payments under Section 1.5(a)) and such failure remains unremedied for more
than three Business Days; or
(c) the Seller fails to observe or perform any covenant or
agreement contained in Sections 5.1(g), 5.1(i) or 5.1(j) of this Agreement
or the Originator fails to perform any covenant or agreement in Sections
5.1(g), 5.1(h) or 5.1(i) of the Purchase Agreement; or
(d) the Seller or the Collection Agent (or any sub-collection
agent) fails to observe or perform any other term, covenant or agreement
under any Transaction Document, and such failure remains unremedied for two
Business Days after written notice from the Agent to the Seller; or
(e) any Bergen Entity or any Significant Subsidiary suffers a
Bankruptcy Event; or
(f) (i) the Delinquency Ratio exceeds 3.75%, (ii) the Default
Ratio exceeds 6.75%, (iii) the average of the Dilution Ratio for any three
consecutive calendar months exceeds 6.0%, (iv) the Loss-to Liquidation
Ratio at the end of any calendar month measured for the three month period
then ending exceeds 0.5%, (v) the Turnover Ratio exceeds 20 days, or (vi)
the Coverage Ratio exceeds 100%; or
(g) any Transaction Document fails to be the enforceable
obligation of the Seller any Bergen Entity or any Affiliate party thereto;
or
<PAGE>
(h) (i) any Bergen Entity (A) generally does not pay its debts as
such debts become due or admits in writing its inability to pay its debts
generally or (B) fails to pay any of its indebtedness (except in aggregate
principal amount of less than $25,000,000) or defaults (subject to any
applicable grace period) in the performance of any provision of any
agreement under which such indebtedness was created or is governed and such
default permits such indebtedness to be declared due and payable or to be
required to be prepaid before the scheduled maturity thereof or (ii) a
default (subject to any applicable grace period) or termination or similar
event occurs under any agreement providing for the sale, transfer or
conveyance by the Seller or any Bergen Entity of any of its financial
assets;
(i) the Parent's long-term unsecured, unsubordinated indebtedness
is rated less than BBB- by S&P (or such rating is withdrawn or suspended)
and less than Baa3 by Moody's (or such rating is withdrawn or suspended);
(j) the Parent shall fail to own and control, directly or
indirectly, 100% of the outstanding voting stock of the Seller and the
Originator; (k) a Collection Agent Replacement Event has occurred and is
continuing; or
(l) the Initial Collection Agent voluntarily resigns for any
reason.
Notwithstanding the foregoing, a failure of a representation or warranty or
breach of any covenant described in clause (a), (c) or (d) above related to a
Receivable shall not constitute a Termination Event if the Seller has been
deemed to have collected such Receivable pursuant to Section 1.5(b) or, before
the Termination Date, has adjusted the Sold Interest as provided in
Section 1.5(c) so that such Receivable is no longer considered to be
outstanding.
"Tranche" means a portion of the Investment of a Conduit Purchaser or
of the Related Bank Purchasers allocated to a Tranche Period pursuant to Section
1.3. A Tranche is a (i) CP Tranche, (ii) Eurodollar Tranche or (iii) Prime
Tranche depending whether Discount accrues during its Tranche Period based on a
(i) CP Rate, (ii) Eurodollar Rate, or (iii) Prime Rate.
"Tranche Period" means a period of days ending on a Business Day
selected pursuant to Section 1.3, which (i) for a CP Tranche shall not exceed
270 days, (ii) for a Eurodollar Tranche shall not exceed 180 days, and (iii) for
a Prime Tranche shall not exceed 30 days.
Transaction Documents" means this Agreement, each Fee Letter, each
Pricing Letter, the Purchase Agreement, the Subordinated Note and all other
documents, instruments and agreements executed or furnished in connection
herewith and therewith.
"Transfer Agreement" means (i) the Liquidity Asset Purchase Agreement
dated the date hereof among Blue Ridge, Wachovia Bank, N.A., in its capacity as
the Blue Ridge Purchaser Agent, administrative agent for Blue Ridge, and as a
Liquidity Bank and the other Liquidity Banks from time to time party thereto and
<PAGE>
(ii) with respect to any other Purchaser Group, a transfer agreement, liquidity
asset purchase agreement or other similar agreement identified as its "Transfer
Agreement" in the Rate Supplement for such Purchaser Group.
"Transfer Supplement" means an agreement among the parties hereto
pursuant to which an existing Purchaser Group adds a new Purchaser.
"Turnover Ratio" means, as of any calendar month, the product
(expressed in number of days) of (a) the quotient of (i) the sum of the
outstanding balances of all Receivables as of the first day of each of the three
most recent calendar months divided by (ii) the sum of Collections during each
of the same three months and (b) 30.
"UCC" means, for any state, the Uniform Commercial Code as in effect
in such state.
"Unused Commitment" means, for any Committed Purchaser at any time,
the difference between its Commitment and its Investment then outstanding.
"USA" means the United States of America (including all states and
political subdivisions thereof).
"Wachovia" means Wachovia Bank, N.A., in its individual capacity and
not in its capacity as Blue Ridge Purchaser Agent.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Unless otherwise inconsistent
with the terms of this Agreement, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP. Amounts to be calculated hereunder shall be continuously
recalculated at the time any information relevant to such calculation changes.
<PAGE>
Schedule II
Related Bank Purchasers and
Purchase Commitments of Related Bank Purchasers
and Purchaser Groups
Name of Related Bank Commitments of Related
Conduit Purchaser Purchaser Bank Purchasers
Blue Ridge Wachovia Bank, N.A. $204,000,000
Purchaser Group Commitments
Purchaser Group Commitment
Blue Ridge Purchaser Group $204,000,000
<PAGE>
Exhibit A
to
Receivables Sale Agreement
Form of Incremental Purchase Request
____________, 199_
Wachovia Bank, N.A., as Purchaser
Agent for the Blue Ridge Purchaser Group
191 Peachtree Street, N.E., MC-GA-423
Atlanta, Georgia 30303
Attn: Elizabeth Wagner
Re: Receivables Sale Agreement dated as of December 17, 1999
(the "Sale Agreement"), among Blue Hill, Inc., as Seller,
Bergen Brunswig Drug Company, as Initial Collection Agent,
Wachovia Bank, N.A., as Agent, the Purchaser Agents from
time to time party thereto and the Purchasers thereunder
Ladies and Gentlemen:
The undersigned Seller under the above-referenced Sale Agreement
hereby confirms it has requested an Incremental Purchase of $___________ by the
Conduit Purchasers under the Sale Agreement. [In the event a Conduit Purchaser
is unable or unwilling to make the requested Incremental Purchase, the Seller
hereby requests an Incremental Purchase of $____________ by the Related Bank
Purchasers for such Conduit Purchaser under the Sale Agreement at the
[Eurodollar Rate with a Tranche Period of _______ months.] [Prime Rate]].
Attached hereto as Schedule I is information relating to the proposed
Incremental Purchase required by the Sale Agreement. If on the date of this
Incremental Purchase Request ("Notice"), an Interim Liquidation is in effect,
this Notice revokes our request for such Interim Liquidation so that
Reinvestment Purchases shall immediately commence in accordance with
Section 1.1(d) of the Sale Agreement.
The Seller hereby certifies that both before and after giving effect
to [each of] the proposed Incremental Purchase[s] contemplated hereby and the
use of the proceeds therefrom, all of the requirements of Section 7.2 of the
Sale Agreement have been satisfied.
Very truly yours,
Blue Hill, Inc.
By
Title________________________
<PAGE>
Schedule I
to
Incremental Purchase Requests
Summary of Information Relating to Proposed Sale(s)
1. Dates, Amounts, Purchaser(s), Proposed Tranche Periods
<TABLE>
<S> <C>
A1 Date of Notice _________
A2 Measurement Date (the last
Business Day of the month
immediately preceding the
month in which the Date of
Notice occurs) _________
A3 Proposed Purchase Dates _________ _________ _________ _________
(each of which is a
Business Day)
A4 Respective Proposed
Incremental Purchase on
each such Purchase Date $_________ $_________ $_________ $_________
(each Incremental (A4A) (A4B) (A4C) (A4D)
Purchase must be in a
minimum amount of
$1,000,000 and multiples
thereof, or, if less, an
amount equal to the
Maximum Incremental
Purchase Amount)
A5 Proposed Allocation
among Purchasers (Pro Rata)
Conduit Purchasers
Name of
Related Bank
Purchaser $_________ $_________ $_________ $_________
A6 Used Aggregate
Commitment Amount
(after such Incremental Purchases) $_________
</TABLE>
Each proposed Purchase Date must be a Business Day and must occur no later
than two weeks after the Measurement Date set forth above. The choice of
Measurement Date is a risk undertaken by the Seller. If a selected
Measurement Date is not the applicable Purchase Date, the Seller's choice
and disclosure of such date shall not in any manner diminish or waive the
obligation of the Seller to assure the Purchasers that, after giving effect
to the proposed Purchase, the actual Sold Interest as of the date of such
proposed Purchase does not exceed 100%.
<PAGE>
B-3
Exhibit B
to
Receivables Sale Agreement
Form of Notification of Assignment from an Uncommitted Conduit
Purchaser to the Applicable Related Bank Purchasers
______________, 199_
Blue Hill, Inc.
4000 Metropolitan Drive
Orange, California 92868
___________________, as the ____________ Purchaser Agent
_____________________________
_____________________________
_____________________________
Attn: ________________________
[Insert Name and Address of each
applicable Related Bank Purchaser]
Re: Receivables Sale Agreement dated as of December 17, 1999
(the "Sale Agreement") among Blue Hill, Inc., as Seller,
Bergen Brunswig Drug Company, as Initial Collection Agent,
Wachovia Bank, N.A., as Agent, the Purchaser Agents from
time to time party thereto and the Purchasers thereunder
Ladies and Gentlemen:
The Purchaser Agent under the above referenced Sale Agreement hereby
notifies each of you that _____________ has notified such Purchaser Agent
pursuant to Section 2.2 of the Sale Agreement that it will purchase from its
Conduit Purchasers on _________________ (the "Purchase Date") that portion of
its Conduit Purchasers' Investments identified on Schedule I hereto (the
"Assigned Interest"). As further provided in Section 2.2 of the Sale Agreement,
upon payment by ______________ to its Purchaser Agent of the purchase price of
such Investments described on Schedule I hereto, effective as of the Purchase
Date the assignment by the Conduit Purchasers to ____________ of the Assigned
Interest shall be complete and all payments thereon under the Sale Agreement
shall be made to ______________.
In accordance with the Sale Agreement, each Conduit Purchaser's
acceptance of the portion of the purchase price payable to it described on
Schedule I hereto constitutes its representation and warranty that it is the
legal and beneficial owner of the portion of the Assigned Interest related to
its Purchase Interest identified on Schedule I free and clear of any Adverse
Claim created or granted by it and that on the Purchase Date it is not subject
to a Bankruptcy Event.
Very truly yours,
________________________, as ___________
Purchaser Agent
By
Name___________________________________
Title__________________________________
By
Name____________________________________
Title___________________________________
<PAGE>
Schedule I
to
Notification of Assignment
Dated ______________, ____
I. Amount of Committed Purchaser Investment Assigned: $________
II. Information for each Committed Purchaser:
Purchaser Purchase Interest Purchase Price*
III. Information for Seller:
Aggregate amount of purchase price in excess of amount of Investment
assigned: $___________.
<PAGE>
Exhibit C
Form of Periodic Report
Bergen Brunswig Drug Company/ Blue Hill, Inc.
Asset Securitization Monthly Report
Month - Year
<TABLE>
<CAPTION>
Consolidated Receivables Activity Current Month
in $s
<S> <C> <C>
1 Beginning Receivables Balance
2 Plus: New Receivables (Sales)
3 Less: Non-Cash Credits
4 Less: Cash Collections
5 Less: Charge-offs
------------------
------------------
6 Ending Receivables Balance
7 Less: Ineligible Receivables [See Schedule
I]
8 Less: Dated Balance
------------------
------------------
9 Eligible Receivables
10 Less: Excess Concentrations [See Schedule III]
------------------
==================
11 Net Receivables Balance (NRB)
==================
==================
Consolidated Receivables Agings [See Schedule II]
Current Month
in $s %
12 Div-Held Notes
13 Dated Balances Not Due Yet
14 Current
15 1-30 Days Past Due
16 31-60 Days Past Due
17 > 60 Days Past Due
------------------ ----------------
================== ================
18 Total
================== ================
================== ================
Ownership Interest and Reserve Calculations [See Schedule IV]
19 Loss Reserve
20 Discount Reserve
21 Dilution Reserve
------------------
------------------
22 Total Reserves
23 Maximum Advance [Line 11 - 22]
24 Actual Aggregate Net Investment (ANI)
<PAGE>
Required Ratio for
Covenant Compliance [See Schedule V] Covenant Level Current Month In Compliance?
25 Delinquency Ratio less than 3.75%
26 Default Ratio less than 6.75%
27 Loss-to-Liquidation Ratio less than 0.5%
28 Turnover Ratio less than 20 days
29 Dilution Ratio less than 6.0%
30 Coverage Ratio less than 100%
31 Servicer Senior Unsecured Debt Ratings by S&P and Moodys above investment grade
</TABLE>
By signing below, Bergen Brunswig Drug Company attests to the accuracy and
completeness of the stated information and continues to comply with the
covenants, representations and warranties as set forth in the Receivables
Purchase Agreement dated December 17, 1999.
Bergen Brunswig Drug Company
Signed by: -----------------------
Title: --------------------------
<PAGE>
Exhibit D
Addresses and Names of Seller and Originator
1. Locations. (a) The chief executive office of the Seller and the
Originator are located at the following address:
4000 Metropolitan Drive
Orange, California 92868
No such address was different at any time since January 1, 1999.
(b) The following are all the locations where the Seller and the
Originator directly or through its agents maintain any Records:
Same as 1(a) above and the distribution centers listed on Exhibit B to
the Purchase Agreement.
2. Names. The following is a list of all names (including trade names
or similar appellations) used by the Seller and the Originator or any of its
divisions or other business units that generate Receivables:
Healthcare Purchasing Agency
Intelligent Drug Information
Impact Distribution Company
<PAGE>
Exhibit E
Subsidiaries
<PAGE>
Exhibit F
Lock Boxes, Lock-Box Banks, Depositary Banks and Depositary Accounts
Lock-Box Bank Lock-Box Number Lock-Box Account
Wells Fargo Bank 4159268473
Depositary Bank Depositary Account
Bank of Hawaii 1066293
Bank One 240420358401
Key Bank 359681013504
800003432
Bank of America 3751289465
3750900240
3751449331
3751454656
3751454669
3751454672
Wells Fargo Bank 4375684628
4375684636
4159665546
4375684685
4159624865
4375684344
<PAGE>
4159687425
4159660018
4159268499
4159268481
SunTrust Bank 2363732
National City Bank 70170272
<PAGE>
Exhibit G-1
To Receivables Sale Agreement
Form of Lock Box Letter
[Name of Lock Box Bank]
Ladies and Gentlemen:
Reference is made to the lock-box numbers _______________ in
__________ and the associated lock-box demand deposit account number
____________ maintained with you (such lock-boxes and associated lock-box demand
deposit account, collectively, the "Accounts"), each in the name of Bergen
Brunswig Drug Company ("BBDC"). BBDC hereby confirms it has sold all Receivables
(as defined below) to Blue Hill, Inc. (the "Seller").
In connection with the Receivables Sale Agreement, dated as of
December 17, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Receivables Sale Agreement"), among the Seller, the Initial
Collection Agent, Blue Ridge Asset Funding Corporation, as a Conduit Purchaser
("Blue Ridge"), the other Conduit Purchasers from time to time party thereto,
the Related Bank Purchasers from time to time party thereto (collectively, the
"Purchasers"), Wachovia Bank, N.A., as administrative agent for the Purchasers
(the "Agent") and as Blue Ridge Purchaser Agent, the other Purchaser Agents from
time to time party thereto and the Related Bank Purchasers from time to time
party thereto, the Seller has assigned to the Agent for the benefit of the
Purchasers an undivided percentage interest in the accounts, chattel paper,
instruments or general intangibles (collectively, the "Receivables") under which
payments are or may hereafter be made to the Accounts, and has granted to the
Agent for the benefit of the Purchasers a security interest in its retained
interest in such Receivables. As is the customary practice in this type of
transaction, we hereby request that you execute this letter agreement. All
references herein to "we" and "us" refer to BBDC and the Seller, jointly and
severally. Your execution hereof is a condition precedent to our continued
maintenance of the Accounts with you.
We hereby transfer exclusive dominion and control of the Accounts to
the Agent, subject only to the condition subsequent that the Agent shall have
given you notice that a "Collection Agent Replacement Event" has occurred and is
continuing under the Receivables Sale Agreement and of its election to assume
such dominion and control, which notice shall be in substantially the form
attached hereto as Annex A (the "Agent's Notice").
At all times prior to the receipt of the Agent's Notice described
above, all payments to be made by you out of, or in connection with the
Accounts, are to be made in accordance with the instructions of the Seller or
its agent.
<PAGE>
We hereby irrevocably instruct you, at all times from and after the
date of your receipt of the Agent's Notice as described above, to make all
payments to be made by you out of, or in connection with, the Accounts directly
to the Agent, at its address set forth below its signature hereto or as the
Agent otherwise notifies you, or otherwise in accordance with the instructions
of the Agent.
We also hereby notify you that, at all times from and after the date
of your receipt of the Agent's Notice as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
connection with the Accounts, including, without limitation, (a) the right to
specify when payments are to be made out of, or in connection with, the Accounts
and (b) the right to require preparation of duplicate monthly bank statements on
the Accounts for the Agent's audit purposes and mailing of such statements
directly to an address specified by the Agent. At all times from and after the
date of your receipt of the Agent's Notice, neither we nor any of our affiliates
shall be given any access to the Accounts.
The Agent's Notice may be personally served or sent by telex,
facsimile or U.S. mail, certified return receipt requested, to the address,
telex or facsimile number set forth under your signature to this letter
agreement (or to such other address, telex or facsimile number as to which you
shall notify the Agent in writing). If the Agent's Notice is given by telex or
facsimile, it will be deemed to have been received when the Agent's Notice is
sent and the answerback is received (in the case of telex) or receipt is
confirmed by telephone or other electronic means (in the case of facsimile). All
other notices will be deemed to have been received when actually received or, in
the case of personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of
the Agent's right to dominion and control of the Accounts and its ownership of
and security interest in the amounts from time to time on deposit therein and
agree that from the date hereof the Accounts shall be maintained by you for the
benefit of, and amounts from time to time therein held by you as agent for, the
Agent on the terms provided herein. The Accounts are to be entitled "Blue Hill,
Inc. and Wachovia Bank, N.A., as Agent for the Purchasers" with the subline
"Bergen Brunswig Drug Company". Except as otherwise provided in this letter
agreement, payments to the Accounts are to be processed in accordance with the
standard procedures currently in effect. All service charges and fees in
connection with the Accounts shall continue to be payable by us under the
arrangements currently in effect.
By executing this letter agreement, you (a) irrevocably waive and
agree not to assert, claim or endeavor to exercise, (b) irrevocably bar and
estop yourself from asserting, claiming or exercising and (c) acknowledge that
you have not heretofore received a notice, writ, order or other form of legal
process from any other party asserting, claiming or exercising, any right of
set-off, banker's lien or other purported form of claim with respect to the
accounts or any funds from time to time therein. Except for your right to
payment of your service charge and fees and to make deductions for returned
items, you shall have no rights in the Accounts or funds therein, except
deductions for service charges, fees and returned or misplaced items. To the
extent you may ever have any additional rights, you hereby expressly subordinate
all such rights to all rights of the Agent.
<PAGE>
You may terminate this letter agreement by canceling the Accounts
maintained with you, which cancellation and termination shall become effective
only upon thirty (30) days prior written notice thereof from you to the Agent in
the absence of fraud or abuse. Incoming mail addressed to the Accounts
(including, without limitation, any direct funds transfer to the Accounts)
received after such cancellation shall be forwarded in accordance with the
Agent's instructions. This letter agreement may also be terminated upon written
notice to you by the Agent stating that the Receivables Sale Agreement is no
longer in effect. Except as otherwise provided in this paragraph, this letter
agreement may not be terminated without the prior written consent of the Agent.
This letter agreement contains the entire agreement between the
parties with respect to the subject matter hereof, and may not be altered,
modified or amended in any respect, nor may any right, power or privilege of any
party hereunder be waived or released or discharged, except upon execution by
you, us and the Agent of a written instrument so providing. The terms and
conditions of any agreement between us and you (a "Lock-Box Service Agreement")
(whether now existing or executed hereafter) with respect to the lock-box
arrangements, to the extent not inconsistent with this letter agreement, will
remain in effect between you and us. In the event that any provision in this
letter agreement is in conflict with, or inconsistent with, any provision of any
such Lock-Box Service Agreement, this letter agreement will exclusively govern
and control. Each party agrees to take all actions reasonably requested by any
other party to carry out the purposes of this letter agreement or to preserve
and protect the rights of each party hereunder.
BBDC agrees to indemnify, defend and hold harmless you and your
affiliates, directors, officers, employees, agents, successors and assigns
(each, an "Indemnitee") from and against any and all liabilities, losses,
claims, damages, demands, costs and expenses of every kind (including but not
limited to costs incurred as a result of items being deposited in the Account
and being unpaid for any reason, reasonable attorney's fees and the reasonable
charges of your in-house counsel) incurred or sustained by any Indemnitee
arising out of your performance of the services contemplated by this Lock-Box
Letter, except to the extent such liabilities, losses, claims, damages, demands,
costs and expenses are the direct result of your gross negligence or willful
misconduct. The provisions of this paragraph shall survive the termination of
this Lock-Box Letter.
In the event BBDC becomes subject to a voluntary or involuntary
proceeding under the United States Bankruptcy Code, or if you are otherwise
served with legal process which you in good faith believe affects funds in the
Account you may suspend disbursements from the Account otherwise required by the
terms hereof until such time as you receive an appropriate court order or other
assurances satisfactory to you establishing that the funds may continue to be
disbursed according to the instructions contained in this Lock-Box Letter.
This letter agreement and the rights and obligations of the parties
hereunder will be governed by and construed and interpreted in accordance with
the laws of the state of New York. This letter agreement may be executed in any
number of counterparts and all of such counterparts taken together will be
deemed to constitute one and the same instrument.
<PAGE>
Please indicate your agreement to the terms of this letter agreement
by signing in the space provided below. This letter agreement will become
effective immediately upon execution of a counterpart of this letter agreement
by all parties hereto.
Very truly yours,
Bergen Brunswig Drug Company
By
Title_______________________________
Blue Hill, Inc.
By
Title_______________________________
Accepted and confirmed as of
the date first written above:
By: Wachovia Bank, N.A., as Agent
By___________________________________________________
Title___________________________________________
Address of notice:
Wachovia Bank, N.A.
_____________________
_____________________
_____________________
Attention: _____________________
Telephone Number: __________________
Telecopy Number: __________________
<PAGE>
Acknowledged and agreed to as of the date first written above:
[Name of Bank]
By___________________________________________________
Title___________________________________________
Address of notice:
_____________________________________________________
_____________________________________________________
_____________________________________________________
<PAGE>
Annex A to
Lock-Box Letter
[Name of Bank]
Re: Blue Hill, Inc.
Lock Box Numbers ______________
Lock-Box Account Number ____________
Ladies and Gentlemen:
Reference is made to the letter agreement dated _________________ (the
"Letter Agreement") among Bergen Brunswig Drug Company, Blue Hill, Inc., the
undersigned, as Agent, and you concerning the above-described lock-boxes and
lock-box account (collectively, the "Accounts"). We hereby give you notice that
a "Collection Agent Replacement Event" has occurred and is continuing under the
Receivables Sale Agreement (as defined in the Letter Agreement) and of our
assumption of dominion and control of the Accounts as provided in the Letter
Agreement.
We hereby instruct you not to permit any other party to have access to
the Accounts and to make all payments to be made by you out of or in connection
with the Accounts directly to the undersigned upon our instructions, at our
address set forth above.
Very truly yours,
Wachovia Bank, N.A.
By
Title____________________________
cc: Blue Hill, Inc.
<PAGE>
Exhibit G-2
to Receivables Sale Agreement
Form of Depositary Account Letter
[Name of Depositary Bank]
Ladies and Gentlemen:
Reference is made to the deposit account numbers _______________ in
__________ maintained with you (such deposit account collectively, the
"Accounts"), each in the name of Bergen Brunswig Drug Company ("BBDC"). BBDC
hereby confirms it has sold all Receivables (as defined below) to Blue Hill,
Inc. (the "Seller").
In connection with the Receivables Sale Agreement, dated as of
December 17, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Receivables Sale Agreement"), among the Seller, the Initial
Collection Agent, Blue Ridge Asset Funding Corporation, as a Conduit Purchaser
("Blue Ridge"), the other Conduit Purchasers from time to time party thereto
(collectively, the "Purchasers"), Wachovia Bank N.A., as administrative agent
for the Purchasers (the "Agent") and as Blue Ridge Purchaser Agent, the other
Purchaser Agents from time to time party thereto and the Related Bank Purchasers
from time to time party thereto, the Seller has assigned to the Agent for the
benefit of the Purchasers an undivided percentage interest in the accounts,
chattel paper, instruments or general intangibles (collectively, the
"Receivables") under which payments are or may hereafter be made to the
Accounts, and has granted to the Agent for the benefit of the Purchasers a
security interest in its retained interest in such Receivables. As is the
customary practice in this type of transaction, we hereby request that you
execute this letter agreement. All references herein to "we" and "us" refer to
BBDC and the Seller, jointly and severally. Your execution hereof is a condition
precedent to our continued maintenance of the Accounts with you.
We hereby transfer exclusive dominion and control of the Accounts to
the Agent, subject only to the condition subsequent that the Agent shall have
given you notice that a "Collection Agent Replacement Event" has occurred and is
continuing under the Receivables Sale Agreement and of its election to assume
such dominion and control, which notice shall be in substantially the form
attached hereto as Annex A (the "Agent's Notice").
At all times prior to the receipt of the Agent's Notice described
above, all payments to be made by you out of, or in connection with the
Accounts, are to be made in accordance with the instructions of the Seller or
its agent.
We hereby irrevocably instruct you, at all times from and after the
date of your receipt of the Agent's Notice as described above, to make all
payments to be made by you out of, or in connection with, the Accounts directly
to the Agent, at its address set forth below its signature hereto or as the
<PAGE>
Agent otherwise notifies you, or otherwise in accordance with the instructions
of the Agent.
We also hereby notify you that, at all times from and after the date
of your receipt of the Agent's Notice as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
connection with the Accounts, including, without limitation, (a) the right to
specify when payments are to be made out of, or in connection with, the Accounts
and (b) the right to require preparation of duplicate monthly bank statements on
the Accounts for the Agent's audit purposes and mailing of such statements
directly to an address specified by the Agent. At all times from and after the
date of your receipt of the Agent's Notice, neither we nor any of our affiliates
shall be given any access to the Accounts.
The Agent's Notice may be personally served or sent by telex,
facsimile or U.S. mail, certified return receipt requested, to the address,
telex or facsimile number set forth under your signature to this letter
agreement (or to such other address, telex or facsimile number as to which you
shall notify the Agent in writing). If the Agent's Notice is given by telex or
facsimile, it will be deemed to have been received when the Agent's Notice is
sent and the answerback is received (in the case of telex) or receipt is
confirmed by telephone or other electronic means (in the case of facsimile). All
other notices will be deemed to have been received when actually received or, in
the case of personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of
the Agent's right to dominion and control of the Accounts and its ownership of
and security interest in the amounts from time to time on deposit therein and
agree that from the date hereof the Accounts shall be maintained by you for the
benefit of, and amounts from time to time therein held by you as agent for, the
Agent on the terms provided herein. The Accounts are to be entitled "Blue Hill,
Inc. and Wachovia Bank, N.A., as Agent for the Purchasers" with the subline
"Bergen Brunswig Drug Company". Except as otherwise provided in this letter
agreement, payments to the Accounts are to be processed in accordance with the
standard procedures currently in effect. All service charges and fees in
connection with the Accounts shall continue to be payable by us under the
arrangements currently in effect.
By executing this letter agreement, you (a) irrevocably waive and
agree not to assert, claim or endeavor to exercise, (b) irrevocably bar and
estop yourself from asserting, claiming or exercising and (c) acknowledge that
you have not heretofore received a notice, writ, order or other form of legal
process from any other party asserting, claiming or exercising, any right of
set-off, banker's lien or other purported form of claim with respect to the
accounts or any funds from time to time therein. Except for your right to
payment of your service charge and fees and to make deductions for returned
items, you shall have no rights in the Accounts or funds therein, except
deductions for service charges, fees and returned or misplaced items. To the
extent you may ever have any additional rights, you hereby expressly subordinate
all such rights to all rights of the Agent.
You may terminate this letter agreement by canceling the Accounts
maintained with you, which cancellation and termination shall become effective
only upon thirty (30) days prior written notice thereof from you to the Agent in
the absence of fraud or abuse. Incoming mail addressed to the Accounts
(including, without limitation, any direct funds transfer to the Accounts)
<PAGE>
received after such cancellation shall be forwarded in accordance with the
Agent's instructions. The Agent's rights under this letter agreement and the
Accounts may also be terminated with respect to the Agent upon written notice to
you by the Agent stating that the Receivables Sale Agreement is no longer in
effect, at which time, the Seller shall be deemed to have succeeded to the
Agent's rights under this Agreement. Except as otherwise provided in this
paragraph, this letter agreement may not be terminated without the prior written
consent of the Agent.
This letter agreement contains the entire agreement between the
parties with respect to the subject matter hereof, and may not be altered,
modified or amended in any respect, nor may any right, power or privilege of any
party hereunder be waived or released or discharged, except upon execution by
you, us and the Agent of a written instrument so providing. The terms and
conditions of any agreement between us and you (a "Lock-Box Service Agreement")
(whether now existing or executed hereafter) with respect to the lock-box
arrangements, to the extent not inconsistent with this letter agreement, will
remain in effect between you and us. In the event that any provision in this
letter agreement is in conflict with, or inconsistent with, any provision of any
such Lock-Box Service Agreement, this letter agreement will exclusively govern
and control. Each party agrees to take all actions reasonably requested by any
other party to carry out the purposes of this letter agreement or to preserve
and protect the rights of each party hereunder.
BBDC agrees to indemnify, defend and hold harmless you and your
affiliates, directors, officers, employees, agents, successors and assigns
(each, an "Indemnitee") from and against any and all liabilities, losses,
claims, damages, demands, costs and expenses of every kind (including but not
limited to costs incurred as a result of items being deposited in the Account
and being unpaid for any reason, reasonable attorney's fees and the reasonable
charges of your in-house counsel) incurred or sustained by any Indemnitee
arising out of your performance of the services contemplated by this Lock-Box
Letter, except to the extent such liabilities, losses, claims, damages, demands,
costs and expenses are the direct result of your gross negligence or willful
misconduct or Seller's gross negligence or willful misconduct. The provisions of
this paragraph shall survive the termination of this Lock-Box Letter.
Seller agrees to indemnify, defend and hold harmless you and your
affiliates, directors, officers, employees, agents, successors and assigns
(each, an "Indemnitee") from and against any and all liabilities, losses,
claims, damages, demands, costs and expenses of every kind (including but not
limited to costs incurred as a result of items being deposited in the Account
and being unpaid for any reason, reasonable attorney's fees and the reasonable
charges of your in-house counsel) incurred or sustained by any Indemnitee
arising out of your performance of the services contemplated by this Depositary
Account Letter, except to the extent such liabilities, losses, claims, damages,
demands, costs and expenses are the direct result of your gross negligence or
willful misconduct or BBDC's gross negligence or willful misconduct. The
provisions of this paragraph shall survive the termination of this Depositary
Account Letter.
In the event BBDC becomes subject to a voluntary or involuntary
proceeding under the United States Bankruptcy Code, or if you are otherwise
served with legal process which you in good faith believe affects funds in the
Account you may suspend disbursements from the Account otherwise required by the
<PAGE>
terms hereof until such time as you receive an appropriate court order or other
assurances satisfactory to you establishing that the funds may continue to be
disbursed according to the instructions contained in this Lock-Box Letter.
This letter agreement and the rights and obligations of the parties
hereunder will be governed by and construed and interpreted in accordance with
the laws of the state of New York. This letter agreement may be executed in any
number of counterparts and all of such counterparts taken together will be
deemed to constitute one and the same instrument.
Please indicate your agreement to the terms of this letter agreement
by signing in the space provided below. This letter agreement will become
effective immediately upon execution of a counterpart of this letter agreement
by all parties hereto.
Very truly yours,
Bergen Brunswig Drug Company
By
Title_________________________________
Blue Hill, Inc.
By
Title_________________________________
<PAGE>
Accepted and confirmed as of
the date first written above:
By: Wachovia Bank, N.A., as Agent
By___________________________________________________
Title___________________________________________
Address of notice:
Wachovia Bank, N.A.
_____________________
_____________________
_____________________
Attention: _____________________
Telephone Number: __________________
Telecopy Number: __________________
Acknowledged and agreed to as of the date first written above:
[Name of Bank]
By___________________________________________________
Title___________________________________________
Address of notice:
_____________________________________________________
_____________________________________________________
_____________________________________________________
<PAGE>
Annex A to
Depositary Account Letter
[Name of Bank]
Re: Blue Hill, Inc.
Deposit Account Number ____________
Ladies and Gentlemen:
Reference is made to the letter agreement dated _________________ (the
"Letter Agreement") among Bergen Brunswig Drug Company, Blue Hill, Inc., the
undersigned, as Agent, and you concerning the above-described deposit account
(collectively, the "Accounts"). We hereby give you notice that a "Collection
Agent Replacement Event" has occurred and is continuing under the Receivables
Sale Agreement (as defined in the Letter Agreement) and of our assumption of
dominion and control of the Accounts as provided in the Letter Agreement.
We hereby instruct you not to permit any other party to have access to
the Accounts and to make all payments to be made by you out of or in connection
with the Accounts directly to the undersigned upon our instructions, at our
address set forth above.
Very truly yours,
Wachovia Bank, N.A.
By
Title_________________________
cc: Blue Hill, Inc.
<PAGE>
Exhibit H
To Receivables Sale Agreement
Compliance Certificate
To: Wachovia Bank, N.A., as Agent, and
each Purchaser
This Compliance Certificate is furnished pursuant to Section
5.1(a)(iii) of the Receivables Sale Agreement, dated as of December 17, 1999 (as
amended, supplemented or otherwise modified through the date hereof, the "Sale
Agreement"), among Blue Hill, Inc. (the "Seller"), Bergen Brunswig Drug Company
(the "Initial Collection Agent"), Blue Ridge Asset Funding Corporation, as a
Conduit Purchaser ("Blue Ridge"), the other Conduit Purchasers from time to time
party thereto, the Related Bank Purchasers from time to time party thereto
(collectively, the "Purchasers"), Wachovia Bank, N.A., as Blue Ridge Purchaser
Agent and as administrative agent for the Purchasers (in such capacity, the
"Agent"). Terms used in this Compliance Certificate and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Sale
Agreement.
The undersigned hereby represents, warrants, certifies and confirms
that:
1. The undersigned is a duly elected Designated Financial Officer of
the undersigned.
2. Attached hereto is a copy of the financial statements described in
Section 5.1(a)(i) or 5.1(a)(ii) of the Sale Agreement.
3. The undersigned has reviewed the terms of the Transaction Documents
and has made, or caused to be made under his/her supervision, a detailed review
of the transactions and the conditions of the Seller and the Originator during
and at the end of the accounting period covered by the attached financial
statements.
4. The examinations described in paragraph 3 hereof did not disclose,
and the undersigned has no knowledge of, the existence of any condition or event
which constitutes a Potential Termination Event, during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Compliance Certificate, except as set forth below.
5. Based on the examinations described in paragraph 3 hereof, the
undersigned confirms that the representations and warranties contained in
Article IV of the Sale Agreement are true and correct as though made on the date
hereof, except as set forth below.
<PAGE>
6. The undersigned confirms that Year 2000 remediation efforts are
proceeding as scheduled.
7. [Indicate whether an auditor, regulator or third party consultant
of the undersigned has issued a management letter or other communication
regarding Year 2000 exposure, program or progress].
Described below are the exceptions, if any, to paragraphs 4 and 5
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action the undersigned has taken, is taking or
proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this Compliance
Certificate in support hereof, are made and delivered this ____ day of
___________, 199__.
[Name of Seller or Originator]
By
Designated Financial Officer
<PAGE>
Exhibit I
Credit and Collection Policy
