Exhibit 4.13
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REVOLVING CERTIFICATE PURCHASE AGREEMENT
(SERIES 1994-1)
dated as of December 13, 1994
among
AMERISOURCE RECEIVABLES CORPORATION,
AMERISOURCE CORPORATION,
THE REVOLVING PURCHASERS DESCRIBED HEREIN,
and
BANKERS TRUST COMPANY,
as Agent and Revolving Purchaser
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.................................................... 2
ARTICLE II
PURCHASE AND SALE OF THE CERTIFICATES
SECTION 2.01 The Commitments................................................ 2
SECTION 2.02 Purchase Mechanics............................................. 3
SECTION 2.03 Reduction of Stated Amounts.................................... 4
SECTION 2.04 Certificates................................................... 4
ARTICLE III
REDUCTIONS IN INVESTOR REVOLVING INVESTED AMOUNT
SECTION 3.01 Negative Variable Amounts...................................... 5
SECTION 3.02 Other Reductions............................................... 5
SECTION 3.03 Notice to Revolving Purchasers................................. 6
ARTICLE IV
INVESTOR REVOLVING YIELD AND FEES
SECTION 4.01 Investor Revolving Yield....................................... 6
SECTION 4.02 Non-Usage Fees................................................. 7
SECTION 4.03 Yield Protection............................................... 7
SECTION 4.04 Illegality; Unavailability..................................... 10
SECTION 4.05 Indemnity...................................................... 10
SECTION 4.06 Taxes.......................................................... 11
ARTICLE V
OTHER PAYMENT TERMS
SECTION 5.01 Time and Method of Payment..................................... 12
SECTION 5.02 Pro Rata Treatment............................................. 13
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 ARC........................................................... 13
SECTION 6.02 AmeriSource................................................... 14
ARTICLE VII
CONDITIONS
SECTION 7.01 Conditions to Initial Purchase................................ 15
SECTION 7.02 Conditions to Each Purchase................................... 18
ARTICLE VIII
AFFIRMATIVE COVENANTS
SECTION 8.01 Affirmative Covenants......................................... 18
ARTICLE IX
THE AGENT
SECTION 9.01 Appointment................................................... 20
SECTION 9.02 Nature of Duties.............................................. 20
SECTION 9.03 Lack of Reliance on the Agent and BT Securities Corporation... 21
SECTION 9.04 Certain Rights of the Agent................................... 21
SECTION 9.05 Reliance...................................................... 21
SECTION 9.06 Indemnification............................................... 22
SECTION 9.07 The Agent in Its Individual Capacity.......................... 22
SECTION 9.08 Resignation by the Agent...................................... 22
SECTION 9.09 Reference Bank................................................ 23
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Amendments................................................... 23
SECTION 10.02 No Waiver; Remedies.......................................... 24
SECTION 10.03 Successors and Assigns; Assignments.......................... 24
SECTION 10.04 Survival of Agreement........................................ 26
SECTION 10.05 Expenses; Indemnification.................................... 27
SECTION 10.06 Characterization as Transaction Document..................... 28
SECTION 10.07 Notices...................................................... 28
SECTION 10.08 Binding on Successors and Assigns............................ 28
SECTION 10.09 Severability of Provisions................................... 28
SECTION 10.10 Counterparts................................................. 28
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SECTION 10.11 Governing Law................................................ 29
SECTION 10.12 Failure to Refinance......................................... 29
SECTION 10.13 Tax Characterization......................................... 30
SECTION 10.14 No Proceedings............................................... 30
SECTION 10.15 Confidentiality.............................................. 30
ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS
OF POOLING AGREEMENT
SECTION 1.01 Definitions................................................... 1
SECTION 1.02 Incorporation of Terms and Provisions of the Pooling
Agreement................................................... 5
ARTICLE II
DESIGNATION
SECTION 2.01 Designation................................................... 5
ARTICLE III
PAYMENTS
SECTION 3.01 Payments...................................................... 5
SECTION 3.02 Interest...................................................... 5
SECTION 3.03 Principal Payments............................................ 6
SECTION 3.04 Commitment Fees; Additional Amounts; Breakage Payments........ 7
ARTICLE IV
PAY-OUT EVENTS
SECTION 4.01 Pay-Out Events................................................ 7
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Governing Law................................................. 8
SECTION 5.02 Counterparts.................................................. 8
SECTION 5.03 Severability of Provisions.................................... 8
SECTION 5.04 Amendment, Waiver, Etc........................................ 8
SECTION 5.05 The Trustee................................................... 8
SECTION 5.06 Instructions in Writing....................................... 8
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EXHIBITS
EXHIBIT A Form of Pooling and Servicing Agreement
EXHIBIT B Form of Receivables Purchase Agreement
EXHIBIT C Form of Series 1994-1 Supplement
EXHIBIT D Form of Assignment Agreement
APPENDIX
APPENDIX X Index of Additional Defined Terms
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This REVOLVING CERTIFICATE PURCHASE AGREEMENT, dated as of December 13,
1994 (this "Agreement"), is made among AMERISOURCE RECEIVABLES CORPORATION, a
Delaware corporation ("ARC"), AMERISOURCE CORPORATION, a Delaware corporation
(the "Servicer" or "AmeriSource"), the revolving purchasers (together with their
respective permitted assigns, the "Revolving Purchasers"), and BANKERS TRUST
COMPANY, as agent for the Revolving Purchasers (in that capacity, together with
any successors in that capacity, the "Agent").
BACKGROUND
1. ARC will enter into (a) a Pooling Agreement substantially in the form of
Exhibit A (the "Pooling Agreement") with AmeriSource, as initial Servicer,
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and Manufacturers and Traders Trust Company, a New York banking corporation, as
trustee (in that capacity, together with any successors in that capacity, the
"Trustee"), (b) a Receivables Purchase Agreement substantially in the form of
Exhibit B, (c) a Series 1994-1 Supplement to the Pooling Agreement substantially
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in the form of Exhibit C (the "Supplement"), and (d) certain related documents
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referred to in the forms of those documents. Pursuant to the Pooling Agreement,
ARC will obtain the Series 1994-1 Investor Revolving Certificates (the
"Certificates"), which will represent fractional undivided beneficial interests
in the assets of the AmeriSource Receivables Master Trust (the "Trust"), a trust
to be organized pursuant to the Pooling Agreement. This Agreement is a Revolving
Certificate Purchase Agreement as such is defined in the Pooling Agreement.
2. ARC wishes to sell the Certificates to the Revolving Purchasers and
obtain their commitment to purchase fractional undivided beneficial interests in
the assets of the Trust (each a "Trust Interest") that will be evidenced by the
Certificates. Subject to the terms and conditions of this Agreement, each
Revolving Purchaser is willing (a) to purchase a Certificate with an initial
Stated Amount in the amount set forth below its name on the signature pages to
this Agreement and (b) to agree to make purchases of Trust Interests.
AmeriSource has joined in this Agreement to confirm certain representations,
warranties and covenants for the benefit of the Revolving Purchasers and the
Agent.
3. The Certificates and the Trust Interests represented thereby will serve
as a bridge financing, and it is intended that they will be repaid in full and
cancelled as soon as practicable from the proceeds of a refinancing, as more
fully described herein.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Except for terms otherwise defined herein
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(including without limitation the term "Certificate"), capitalized terms have
the meanings assigned to them in the Supplement or in Appendix A to the Pooling
Agreement, and this Agreement shall be interpreted in accordance with the
conventions set forth in Parts B, C and D of Appendix A to the Pooling
Agreement. An index of terms defined directly in this Agreement is attached as
Appendix X.
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ARTICLE II
PURCHASE AND SALE OF THE CERTIFICATES
SECTION 2.01 The Commitments. Subject to the terms and conditions of this
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Agreement, each Revolving Purchaser agrees, severally and for itself alone, upon
ARC's request, to make purchases (each, a "Purchase") of Trust Interests from
time to time during the period from (and including) the date hereof to (but
excluding) the earlier to occur of the Pay-Out Period Commencement Date for the
Certificates and the Liquidation Commencement Date; provided, that no Revolving
Purchaser will be required or permitted to make a Purchase on any date if the
funded principal amount of its Certificate, after giving effect to the Purchase,
would exceed the lesser of (a) the Stated Amount of its Certificate and (b) its
Percentage multiplied by the Investor Revolving Invested Amount. In addition, no
Revolving Purchaser will be required or permitted to make a Purchase if, after
giving effect thereto (and any corresponding reduction to the ARC Revolving
Amount pursuant to Section 4.03(c) of the Pooling Agreement), the (x) Investor
Revolving Invested Amount would exceed (y) the excess, on that date, of the Base
Amount over the ARC Revolving Amount. The Purchases by the Revolving Purchasers
shall be made ratably in accordance with their respective Percentages; provided,
that the failure of any Revolving Purchaser to make any Purchase shall not
relieve any other Revolving Purchaser of its obligation to make Purchases
hereunder. No Revolving Purchaser shall, however, be responsible for the failure
of any other Revolving Purchaser to make any Purchase. Subject to the terms of
this Agreement, the aggregate principal amount of a Revolving Purchaser's
investment represented by its Certificate may be increased or decreased from
time to time.
For purposes of this Agreement, "Percentage" means, with respect to each
Revolving Purchaser, the percentage equivalent (carried out to twelve decimal
places) of a fraction the numerator of which is the Stated Amount of the
Revolving Purchaser's Certificate and the denominator of which is the sum of the
Stated Amounts of all of the Revolving Purchasers' Certificates. The initial
Percentages of the initial Revolving Purchasers, and the Stated Amounts of their
Certificates, are set out below their names on the signature pages to this
Agreement.
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SECTION 2.02 Purchase Mechanics. (a) Whenever ARC wishes the Revolving
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Purchasers to make Purchases, it shall cause the Servicer to notify the Agent if
the Trust Interests to be purchased initially will form a part of (i) the ABR
Tranche, not later than noon, New York City time, one Business Day prior to the
date of the proposed Purchase and (ii) a Eurodollar Tranche, not later than 2:00
p. m., New York City time, three Business Days prior to the date of the proposed
Purchase. Each notice shall be irrevocable and shall in each case refer to this
Agreement and specify (x) the aggregate purchase price for the requested
Purchases (which shall be in a minimum amount of $1,000,000 or a greater
integral multiple of $500,000 (or in the total unutilized amount of the various
Revolving Purchasers' Stated Amounts)), (y) whether the Trust Interests to be
purchased will form a part of the ABR Tranche or a Eurodollar Tranche and (z)
the date of the Purchase (which shall be a Business Day) and the amount thereof.
If no election required by clause (y) is made in any notice, then the Trust
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Interests obtained in the Purchase shall form a part of the ABR Tranche. The
Agent shall promptly advise the Revolving Purchasers of any notice given
pursuant to this section and of the amount of each Revolving Purchaser's
Purchase.
(b) After receiving notice from the Agent of any notice given pursuant to
subsection (a), each Revolving Purchaser shall make a Purchase in the amount of
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its pro rata portion of aggregate Purchases requested to be made, ratably
according to its Percentage, on the proposed date thereof by wire transfer in
Dollars of immediately available funds to the Agent at the office designated
from time to time by the Agent, not later than 11:00 a. m., New York City time,
and the Agent shall (unless notified in writing that any condition precedent has
not been satisfied), by 2:00 p. m., New York City time, on the same day, make
available to ARC by wire transfer of Dollars in immediately available funds the
aggregate amount of the funds received. Unless the Agent shall have received
written notice from a Revolving Purchaser prior to the date of any Purchase that
the Revolving Purchaser will not make available to the Agent its purchase price,
the Agent may (but shall not be required to) assume that the Revolving Purchaser
has made that portion available to the Agent on the date of the Purchase in
accordance with this subsection, and the Agent may, in reliance upon that
assumption, make available to ARC on that date a corresponding amount.
(c) If and to the extent that any Revolving Purchaser shall not have made
its purchase price available to the Agent and the Agent has made available a
corresponding amount to ARC, the Revolving Purchaser agrees to repay to the
Agent forthwith on demand a corresponding amount, together with interest
thereon, for each day from the date the amount is made available to ARC until
the date the amount is repaid to the Agent (i) for the first three days
following the date the amount is made available, at a rate per annum equal to
the Federal Funds Rate and (ii) thereafter, at a rate per annum equal to the
Federal Funds Rate plus 1%. If the Revolving Purchaser shall repay to the Agent
a corresponding amount, the amount shall constitute its Purchase for purposes of
this Agreement, and if ARC shall have already made the repayment (as provided
below), the Revolving Purchaser shall make a corresponding amount immediately
available to ARC. At any time after the Agent learns that a Revolving Purchaser
has failed to make the purchase price for a Purchase available as described
above, the Agent may give notice to ARC and the Servicer of that failure, and
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upon notice ARC will be required to refund to the Agent an amount equal to that
purchase price, together with interest on the amount at the rate applicable to
the Purchase of which the defaulting Revolving Purchaser's Purchase was to form
a part. In the event that ARC fails to make the payment, the amount of the
purchase price shall, if elected by the Agent, be allocated to the outstanding
principal investment under the Certificate held by the Agent (in its capacity as
a Revolving Purchaser), and any funds subsequently transferred to the Agent
pursuant to Section 3.01 or 3.02 shall be applied first to reduce the
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outstanding principal investment under its Certificate until the Agent has been
repaid an aggregate amount equal to the amount of the increase referred to above
before being applied for any other purpose. Nothing contained in this subsection
shall, or shall be construed to, relieve any Revolving Purchaser from its
obligations hereunder to make available to the Agent its purchase price for each
Purchase.
SECTION 2.03 Reduction of Stated Amounts. Upon at least three Business
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Days' prior irrevocable notice to the Revolving Purchasers in writing, ARC may
reduce the Stated Amounts of the Certificates; provided, that (a) each partial
reduction of the Stated Amounts shall be, in the aggregate for all Certificates,
in an integral multiple of $1,000,000 and in a minimum principal amount of
$5,000,000 and (b) no partial reduction shall be made that would reduce the
aggregate Stated Amounts to an amount less than the Investor Revolving Invested
Amount at the time of the reduction. Each reduction in the Stated Amounts shall
be made ratably among the Revolving Purchasers in accordance with their
respective Stated Amounts. The Agent shall promptly advise the Revolving
Purchasers of any notice given pursuant to this section. Each reference in this
Agreement to the "Stated Amount" of a Certificate means the Stated Amount of the
Certificate after giving effect to any reductions made pursuant to this section.
Promptly after the Stated Amount of any Revolving Purchaser's Certificate has
been reduced to zero (and all Obligations owed to the Revolving Purchaser have
been repaid in full), the Revolving Purchaser will mark its Certificate
"CANCELED" and return it to ARC.
SECTION 2.04 Certificates. The outstanding amounts of the Purchases made
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by each Revolving Purchaser shall be evidenced by its Certificate, to be issued
on the Closing Date substantially in the form of Exhibit A to the Supplement.
Each Revolving Purchaser shall and is hereby authorized to record on the grid
attached to its Certificate (or at its option, in its internal books and
records) the date and amount of each Purchase made by it, the amount of each
repayment of the principal amount represented by its Certificate, the portions
of its Purchases that are from time to time allocated to the ABR Tranche and any
Eurodollar Tranche, and any reductions to the Stated Amount of its Certificate
made pursuant to Section 2.03; provided, that failure to make any recordation on
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the grid or records or any error in the grid or records shall not adversely
affect the Revolving Purchaser's rights with respect to its interest in the
assets of the Trust and its right to receive Investor Revolving Yield in respect
of the outstanding principal amount of all Purchases made by the Revolving
Purchaser.
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ARTICLE III
REDUCTIONS IN INVESTOR REVOLVING INVESTED AMOUNT
SECTION 3.01 Negative Variable Amounts. On any Business Day prior to the
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Liquidation Commencement Date on which the Variable Amount, as determined
pursuant to Section 4.03(c) of the Pooling Agreement, is a negative number, ARC
shall allocate, in accordance with that section, that negative amount (less any
amounts deposited into the Equalization Account on that day in respect of that
negative amount) to reduce the outstanding principal amount evidenced by (x) the
ARC Revolving Certificate, (y) the Investor Certificates or (z) both the ARC
Revolving Certificate and the Investor Certificates; provided, that:
(a) if any reduction is made to the outstanding principal amount
represented by the Investor Certificates (and thus to the Investor
Revolving Invested Amount), the Servicer shall notify the Agent of the
reduction not less than one Business Day prior to the date of the reduction
(which shall be a Business Day) and direct the Trustee to transfer funds
from the Master Collection Account to the Agent, for the account of the
Revolving Purchasers, in an amount equal to the reduction for application
to the reduction of the principal investment (and the reduction in the
outstanding principal amount represented by the Certificates shall not
exceed the amount of funds so transferred to the Agent),
(b) any reduction to the aggregate outstanding principal amount
represented by the Investor Certificates must be in a minimum amount of
$1,000,000 (or the entire outstanding principal amount, if less) or a
greater integral multiple of $500,000, and
(c) any amounts transferred to the Agent pursuant to clause (a) shall
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be applied first, to any then outstanding ABR Tranche or to Eurodollar
Tranches with Yield Periods ending on the date of the transfer (as selected
by ARC and notified to the Agent in the notice of reduction delivered
pursuant to clause (a)) and second, only after the ABR Tranche and all such
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Eurodollar Tranches have been reduced to zero, to other outstanding
Eurodollar Tranches.
SECTION 3.02 Other Reductions. In addition to the foregoing, ARC may, on
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at least two Business Days' prior notice by ARC or the Servicer to the Agent,
reduce the Investor Revolving Invested Amount by causing an amount of funds
equal to the desired amount of the reduction that are available for this purpose
in accordance with the terms of the Pooling Agreement to be transferred to the
Agent, for the account of the Revolving Purchasers (and application to the
reduction of the outstanding principal balance of the Certificates). Any
reduction shall be subject to the requirements specified in clauses (b) and (c)
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of Section 3.01.
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SECTION 3.03 Notice to Revolving Purchasers. The Agent shall promptly
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advise the Revolving Purchasers of any notice given pursuant to Section 3.01 or
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3.02.
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ARTICLE IV
INVESTOR REVOLVING YIELD AND FEES
SECTION 4.01 Investor Revolving Yield. (a) Each time ARC requests the
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Revolving Purchasers to make Purchases hereunder, ARC will notify the Agent in
writing as to whether the Trust Interests included in the Purchase shall, in
whole or in part, be deemed part of the ABR Tranche or (subject to subsections
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(b)(iii) and (b)(iv) below) a Eurodollar Tranche.
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(b) Subject to the terms and conditions set forth in this section and
Section 4.04, ARC shall have the option: (x) on any Business Day, to convert all
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or part of the ABR Tranche to a Eurodollar Tranche and (y) on the last day of
any Yield Period of a Eurodollar Tranche, to convert all or any part of that
Eurodollar Tranche to form a part of the ABR Tranche and/or to continue all or
any part of that Eurodollar Tranche as a new Eurodollar Tranche the Yield Period
for which shall commence on the last day of the prior Yield Period; provided,
that:
(i) each conversion or continuation shall be made ratably among the
Revolving Purchasers in accordance with their respective amounts of the
Purchases comprising the converted or continued Tranche,
(ii) if less than all of the outstanding amount of any Tranche shall
be converted or continued, the aggregate amount of the Tranche converted or
continued shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $2,000,000,
(iii) no outstanding Eurodollar Tranche may be continued as a
Eurodollar Tranche, and no portion of the ABR Tranche may be converted into
a Eurodollar Tranche, at any time that a Liquidation Event or an Unmatured
Liquidation Event has occurred and is continuing; and any Yield Period for
a Eurodollar Tranche that commences after the Liquidation Commencement Date
must begin on a Settlement Date and end on the next Settlement Date, and
(iv) there shall not be more than four separate Eurodollar Tranches
outstanding at any one time.
(c) If ARC wishes to convert and/or continue a Tranche under this section,
ARC shall notify the Agent in writing (i) in the case of a conversion to or
continuation of a Eurodollar Tranche, not later than 11:00 a. m., New York City
time, three Business Days
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prior to the date of the proposed conversion or continuation date and (ii)
otherwise, not later than 11:00 a. m., New York City time, one Business Day
prior to the date of the proposed conversion or continuation. Each notice shall
be irrevocable and shall refer to this Agreement and specify (x) the identity
and amount of the Tranche that ARC wishes to convert or continue, (y) whether
all or part of the Tranche is to be converted into or continued as a Eurodollar
Tranche and (z) the date of the proposed conversion or continuation (which shall
be a Business Day). If ARC shall not have delivered a timely notice in
accordance with this section with respect to any Tranche, the Tranche shall, at
the end of the Yield Period applicable to it (unless repaid pursuant to the
terms hereof), automatically be converted into or continued as the ABR Tranche.
The Agent shall promptly advise the Revolving Purchasers of any notice given
pursuant to this section and of each Revolving Purchaser's portion of any
converted or continued Tranche.
(d) In accordance with Section 3.02(d) of the Supplement, each Revolving
Purchaser and the Agent will be entitled to receive additional interest (at the
rate specified therein) on amounts that are not paid when due under this
Agreement or under its Certificate.
SECTION 4.02 Non-Usage Fees. As the holder of its Certificate, each
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Revolving Purchaser shall be entitled to receive from Collections a fee (a "Non-
Usage Fee") for the period from and including the date hereof, until the earlier
to occur of the Liquidation Commencement Date and the Pay-Out Commencement Date
for the Certificates, equal to the Specified Basis Points accrued on the daily
average of (a) the Stated Amount of its Certificate minus (b) the amount
represented by the Revolving Purchaser's Percentage of the Investor Revolving
Invested Amount. The Non-Usage Fee shall be payable in arrears on each
Settlement Date for the period ending on the preceding Report Date.
"Specified Basis Points" means, with respect to any period set forth below,
the number of basis points set forth opposite the period, accrued at a rate per
annum:
Period Basis Points
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Closing to the date six months after the Closing Date 25
then to the date nine months after the Closing Date 31.25
then to the date one year after the Closing Date 37.5
thereafter 75
provided, however, that the Non-Usage Fee shall be calculated on the basis of
actual days over a year of 365 or 366 days, as applicable.
SECTION 4.03 Yield Protection. (a) Notwithstanding any other provision
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herein, if, after the date hereof, either:
(i) the adoption of any law, rule or regulation (including any
imposition or increase of reserve requirements) or any change after the
date hereof in the
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interpretation or administration of any law, rule or regulation by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or
(ii) the compliance by a Revolving Purchaser with any guideline or
request from any central bank or other Governmental Authority or quasi-
governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law),
shall subject a Revolving Purchaser to the imposition or modification of any
reserve (including any imposed by the Federal Reserve Board), special deposit or
similar requirement (including a reserve, special deposit or similar requirement
that takes the form of a tax) against assets of, deposits with or for the
account of, or credit extended by, the Revolving Purchaser or the office from
time to time that it designates to the Agent as the office through which it
makes and maintains Purchases comprising part of a Eurodollar Tranche (as to
each Revolving Purchaser, its "LIBOR Office") or impose any other condition on a
Revolving Purchaser affecting its Eurodollar Tranches or its obligations
hereunder, and as a result of either of the foregoing there shall be any
increase in the cost to the Revolving Purchaser of agreeing to make or making,
funding or maintaining Purchases as Eurodollar Tranches (except to the extent
already included in the determination of LIBOR), or there shall be a reduction
in the amount received or receivable by the Revolving Purchaser or its LIBOR
Office, then, upon written notice from the Revolving Purchaser to ARC and the
Servicer (with a copy to the Agent), signed by an officer of the Revolving
Purchaser with knowledge of and responsibility for such matters, and setting
forth in reasonable detail the calculation used to arrive at the amounts,
additional amounts sufficient to indemnify that Revolving Purchaser against the
increased cost or reduction in amounts received or receivable shall constitute
"Obligations" for purposes of the Pooling Agreement, and the Revolving Purchaser
shall be entitled to receive these additional amounts, solely from amounts
allocated thereto and paid pursuant to the Pooling Agreement.
(b) If a Revolving Purchaser shall reasonably determine that the adoption
after the date hereof of any law, rule or regulation regarding capital adequacy
or capital maintenance, or any change after the date hereof in any of the
foregoing or in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Revolving Purchaser, any of its
lending offices or its holding company with any request or directive regarding
capital adequacy or capital maintenance (whether or not having the force of law)
or any such Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the Revolving
Purchaser's capital or the capital of its holding company as a consequence of
this Agreement, the commitment of the Revolving Purchaser to make Purchases or
the Purchases made by the Revolving Purchaser pursuant hereto to a level below
that the Revolving Purchaser or its holding company could have achieved but for
the adoption, change or compliance (taking into consideration the Revolving
Purchaser's policies, and the policies of its holding company, with respect to
capital
page 8
adequacy), then, upon written notice from the Revolving Purchaser to ARC and the
Servicer (with a copy to the Agent), signed by an officer of the Revolving
Purchaser with knowledge of and responsibility for such matters, and setting
forth in reasonable detail the calculation used to arrive at the amounts, any
additional amounts as will compensate the Revolving Purchaser or its holding
company for the reduction shall constitute "Obligations" for purposes of the
Pooling Agreement, and the Revolving Purchaser shall be entitled to receive
these additional amounts, solely from amounts allocated thereto and paid
pursuant to the Pooling Agreement.
(c) A Revolving Purchaser shall promptly notify ARC, the Servicer and the
Agent in writing of any event of which it has knowledge occurring after the date
hereof that will entitle it to compensation pursuant to this section. A
certificate of the Revolving Purchaser, signed by an officer of the Revolving
Purchaser with knowledge of and responsibility for such matters, and setting
forth in reasonable detail the calculation used to arrive at the amounts
necessary to compensate the Revolving Purchaser or its holding company as
specified in subsection (a) or (b), as the case may be shall be delivered to ARC
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and the Servicer and shall be conclusive absent demonstrable error. After
receiving a notice from any Revolving Purchaser pursuant to subsection (a), ARC
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may convert that Revolving Purchaser's interests in each Eurodollar Tranche into
a portion of the ABR Tranche; provided, that if more than one Revolving
Purchaser is so affected at any time, then all affected Revolving Purchasers
must be treated in the same manner pursuant to this sentence.
(d) Failure on the part of a Revolving Purchaser to demand compensation for
any amounts as specified in subsection (a) or (b) with respect to any period
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shall not constitute a waiver of its right to demand compensation with respect
to that period or any other period. The protection of this section shall be
available to the Revolving Purchasers regardless of any possible contention of
the invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition that shall have occurred or been imposed.
(e) Promptly after giving any notice to ARC pursuant to this section, a
Revolving Purchaser will use its best efforts to designate one of its offices
located at an address other than that previously designated pursuant to this
Agreement as the office from which its Purchases will be made after the
designation if it will avoid the need for, or materially reduce the amount of,
any payment to which the Revolving Purchaser would otherwise be entitled
pursuant to this section and will not, in the sole discretion of the Revolving
Purchaser, be otherwise disadvantageous to the Revolving Purchaser.
(f) If circumstances subsequently change so that any affected Revolving
Purchaser shall determine that it is no longer affected by any of the items
described in this section or in Section 4.04, the Revolving Purchaser shall
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promptly notify ARC and the Agent, and upon receipt of the notice, the
obligations of the Revolving Purchaser to make or continue Purchases as parts of
Eurodollar Tranches, and to permit Purchases comprising part of the ABR Tranche
to be converted into a part of a Eurodollar Tranche, shall be reinstated.
page 9
SECTION 4.04 Illegality; Unavailability. (a) In the event that on any
--------------------------
date any Revolving Purchaser shall have determined (which determination shall be
final and conclusive and binding upon all parties) that the making or
continuation of its Purchases as Eurodollar Tranches has become unlawful by
compliance by the Revolving Purchaser in good faith with any law, governmental
rule, regulation or order or has become impossible as a result of a contingency
occurring after the date hereof that materially and adversely affects its
interbank eurodollar market, then, and in any such event, that Revolving
Purchaser shall promptly give notice (by telephone confirmed in writing) to ARC,
the Servicer and the Agent (which notice the Agent shall promptly transmit to
each Revolving Purchaser) of that determination. The obligation of the affected
Revolving Purchaser to make or maintain its Purchases as Eurodollar Tranches
during any such period shall be terminated at the earlier of the termination of
the Yield Period then in effect for each Eurodollar Tranche or when required by
law, and ARC shall, no later than the time specified for the termination,
convert any Purchases of the affected Revolving Purchaser that constitute part
of any Eurodollar Tranche into a part of the ABR Tranche.
(b) If, prior to the beginning of any Yield Period, the Agent shall have
determined (which determination shall be final and conclusive and binding upon
all parties) that: (i) Dollar deposits in the relevant amount and for the Yield
Period are not available in the relevant interbank eurodollar market or (ii) by
reason of circumstances affecting the interbank eurodollar market, that adequate
and fair means do not exist for ascertaining the LIBOR applicable to a
Eurodollar Tranche, then the Agent shall promptly give notice of this
determination to ARC and to each Revolving Purchaser. Thereafter, and continuing
until the Agent shall notify ARC that the circumstances giving rise to this
determination no longer exist, (x) each Eurodollar Tranche will, on the last day
of the applicable Yield Period, convert into a part of the ABR Tranche, (y) the
right of ARC to request Eurodollar Tranches shall be suspended and (z) any
Purchases requested to be made as Eurodollar Tranches prior to such time but not
yet made shall be made as ABR Tranches.
SECTION 4.05 Indemnity. If a Revolving Purchaser shall incur any losses,
---------
expenses or liabilities (including any interest paid to lenders of funds
borrowed by it to fund any Purchase as a Eurodollar Tranche and any loss
sustained in connection with the re-deployment of such funds) as a result of (a)
the failure of a Purchase to be made on a date specified therefor in a notice
delivered pursuant to Section 2.02 (other than any such failure resulting from
------------
the Revolving Purchaser's default in the performance of its obligations
hereunder) or (b) any payment, including under Section 3.01, of the Revolving
------------
Purchaser's Purchases on a date that is not the last day of the Yield Period
applicable to the Purchase or on any date specified in a notice of payment given
by the Servicer, then, upon written notice (which notice shall be signed by an
officer of the Revolving Purchaser with knowledge of and responsibility for such
matters and shall set forth in reasonable detail the basis for requesting the
amounts) from the Revolving Purchaser to ARC and the Servicer, additional
amounts sufficient to indemnify the Revolving Purchaser against the losses,
expenses and liabilities, but not for any lost profits associated therewith,
shall constitute "Obligations" for purposes of the Pooling Agreement, and the
Revolving Purchaser shall be entitled to receive
page 10
these additional amounts, solely from amounts allocated thereto and paid
pursuant to the Pooling Agreement.
SECTION 4.06 Taxes. (a) Any and all payments made to each Revolving
-----
Purchaser under this Agreement and its Certificate shall be made free and clear
of and without deduction for any and all current or future taxes, stamp or other
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding taxes imposed on, or measured by reference to,
the net income of, franchise taxes imposed on, and taxes (other than withholding
taxes) imposed on the gross receipts or gross income of, the Revolving
Purchasers by the United States of America or by any jurisdiction under whose
laws the Revolving Purchasers are organized or any political subdivision of any
such jurisdiction (all the nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Trustee shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Certificate to the Revolving
Purchasers, then the sum payable shall be increased by the amount necessary to
yield to each Revolving Purchaser (after payment of all Taxes) an amount equal
to the sum it would have received had no deductions been made, and the
additional amount shall constitute "Obligations" for purposes of the Pooling
Agreement.
(b) Whenever any Taxes are paid by the Trustee pursuant to subsection (a),
--------------
as promptly as possible thereafter the Servicer shall send to the relevant
Revolving Purchaser the original or a certified copy of an original official
receipt showing payment thereof (if any) or any other evidence of the payment as
may be available to the Servicer through the exercise of its reasonable efforts.
If the Trustee fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Revolving Purchaser the required receipts or
other required documentary evidence, the Revolving Purchaser shall be entitled
to receive, solely from amounts allocated with respect thereto and paid pursuant
to the Pooling Agreement, additional amounts necessary to indemnify it for any
incremental taxes, interest or penalties that may become payable by the
Revolving Purchaser as a result of any such failure, and the amounts shall
constitute "Obligations" for purposes of the Pooling Agreement.
(c) On or before the date it becomes a party to this Agreement (and, so
long as it may properly do so, periodically thereafter, as requested by the
Servicer, to keep forms up to date), each Revolving Purchaser that is organized
under the laws of a jurisdiction outside the United States of America shall
deliver to the Trustee any certificates, documents or other evidence that shall
be required by the Internal Revenue Code or Treasury Regulations issued pursuant
thereto to establish its exemption from existing United States Federal
withholding requirements, including (i) two original copies of Internal Revenue
Service Form 1001 or Form 4224 or successor applicable form, properly completed
and duly executed by the Revolving Purchaser certifying that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States Federal income taxes, and (ii) an original copy of Internal
Revenue Service Form W-8 or W-9 or applicable successor form, properly completed
and duly executed; provided, that if any Revolving Purchaser does not
page 11
comply with this Section 4.06(c), amounts payable to such Revolving Purchaser
---------------
under this Section 4.06 shall be limited to amounts that would have been payable
------------
under this section if such Revolving Purchaser had so complied.
(d) No Revolving Purchaser shall be entitled to receive any additional
amounts under this section in respect of United States Federal withholding tax
to the extent that the obligation to pay additional amounts would not have
arisen but for its failure to comply with the provisions of subsection (c).
--------------
(e) The Revolving Purchasers shall be entitled to receive amounts described
in this section solely from amounts allocated to the payment thereof pursuant to
the Pooling Agreement.
(f) Notwithstanding anything to the contrary in this section, if the
Internal Revenue Service determines that a Revolving Purchaser is a conduit
entity participating in a conduit financing arrangement within the meaning of
Section 7701(l) of the Code and Proposed Regulations (S)1.881-3 (or successor
provisions thereto) then (i) any additional Taxes that the Trustee or ARC is
required to withhold from payments to the Revolving Purchaser by virtue of the
conduit financing arrangement shall be excluded from the definition of Covered
Taxes and (ii) the Revolving Purchaser shall indemnify the Trustee and ARC in
full for any and all additional Taxes for which the Trustee or ARC is held
directly liable under Section 1461 of the Code by virtue of the conduit
financing arrangement. In addition to other rights and remedies that the Trustee
or ARC may have, the Trustee may, to the fullest extent permitted by law, set
off and apply any and all amounts that a Revolving Purchaser is required to
indemnify the Trustee or ARC hereunder against amounts otherwise payable to the
Revolving Purchaser under the Certificates.
ARTICLE V
OTHER PAYMENT TERMS
SECTION 5.01 Time and Method of Payment. (a) All amounts payable to any
--------------------------
Revolving Purchaser hereunder or with respect to its Certificate shall be made
to the Agent for the account of the Revolving Purchaser by wire transfer of
immediately available funds in Dollars not later than 2:00 p. m., New York City
time, on the date due. Any funds received after that time will be deemed to have
been received on the next Business Day. The Agent shall distribute all payments
to the Revolving Purchasers, in accordance with their respective interests,
prior to the close of business on the Business Day on which any payment is
deemed received.
(b) On any date on which a payment to one or more Revolving Purchasers
hereunder or under the Certificates is due and payable, the Agent may (but in no
event shall be required to) assume that the payment has been made available to
the Agent on the date of the
page 12
payment in accordance with this section, and the Agent may (but in no event
shall be required to), in reliance upon this assumption, make payment of a
corresponding amount to the Revolving Purchasers. If and to the extent any
amounts shall not have so been made available to the Agent, each Revolving
Purchaser irrevocably and unconditionally agrees to repay to the Agent forthwith
on demand the amount of payment it received together with interest thereon, for
each day from the date payment is made by the Agent until the date the amount is
repaid to the Agent, (i) for the first three days following the date the payment
is made, at a rate per annum equal to the Federal Funds Rate (determined as
provided in the definition of Alternate Base Rate) and (ii) thereafter, at a
rate per annum equal to the Federal Funds Rate plus 1%.
SECTION 5.02 Pro Rata Treatment. Each repayment of Purchases (except as
------------------
otherwise required by Section 2.02(c)), each payment of Investor Revolving
---------------
Yield, each payment of the Non-Usage Fee, each reduction of the Stated Amounts
and each conversion or continuation of any Tranche (except as otherwise required
by Sections 4.03(c) and 4.04(b) with respect to conversions) shall be allocated
---------------- -------
pro rata among the Revolving Purchasers on the date of payment or reduction, in
accordance with their respective Percentages (or, if different, in the case of
Investor Revolving Yield, on the basis of their respective shares in the
Tranches on which the Investor Revolving Yield is paid). Each Revolving
Purchaser agrees that in computing its portion of any Purchases to be made
hereunder, the Agent may, in its discretion, round each Revolving Purchaser's
pro rata share of the Purchases to the next higher or lower whole dollar amount.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 ARC. As of the First Issuance Date, ARC represents and
---
warrants to the Revolving Purchasers that each of its representations and
warranties in the Pooling Agreement and Purchase Agreement is true and correct,
as if made on the First Issuance Date with the same effect as though made on
that date (unless specifically stated to relate to an earlier date), and further
represents and warrants that:
(a) no Liquidation Event or Unmatured Liquidation Event has occurred
and is continuing,
(b) assuming the Revolving Purchasers are not purchasing with a view
toward further distribution and there has been no general solicitation or
general advertising within the meaning of the Securities Act, the offer and
sale of the Certificates in the manner contemplated by this Agreement is a
transaction exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the Pooling Agreement is
not required to be qualified under the Trust Indenture Act of 1939, as
amended,
page 13
(c) except for BT Securities Corporation, in its capacity as
structuring agent for the Purchase, Bankers Trust International PLC and
Donaldson, Lufkin & Jenrette Securities Corporation (the "Financial
Advisors"), ARC has not dealt with any financial advisor, or other Person
who may be entitled to any commission or compensation in connection with
the sale of the Certificates, and the fees of the Financial Advisors shall
be an obligation of AmeriSource, and
(d) no information supplied by or on behalf of ARC or AmeriSource to
the Agent or the Revolving Purchasers in connection with the Transaction
Documents (including without limitation the information contained in the
Syndication Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained
herein or therein not misleading in light of the circumstances under which
they were made.
SECTION 6.02 AmeriSource. As of the First Issuance Date, AmeriSource
-----------
represents and warrants to the Revolving Purchasers that:
(a) each of its representations and warranties in the Pooling
Agreement (in its capacity as Servicer) and the Purchase Agreement (in its
capacity as a Seller) is true and correct, as if made on the First Issuance
Date with the same effect as if made on that date (unless specifically
stated to related to an earlier date),
(b) the audited financial statements and schedules of AmeriSource and
its Subsidiaries for the period ended September 30, 1993, as prepared by
Ernst & Young and filed with the Securities Exchange Commission on Form 10-
K (the "Financial Statements"), present fairly in all material respects the
financial position, results of operations and cash flows of AmeriSource at
the dates and for the periods to which they relate and have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis, except as otherwise stated therein,
(c) except as disclosed in the financial statements and schedules of
AmeriSource and its Subsidiaries filed with the Securities and Exchange
Commission on Form 10-Q, since the date of the Financial Statements (i)
there has been no material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of ARC
or AmeriSource, whether or not arising in the ordinary course of business,
and (ii) there have been no transactions entered into by ARC or AmeriSource
that are material with respect to the condition, financial or otherwise, or
the earnings, business affairs or business prospects of ARC or AmeriSource,
(d) when filed with the Securities and Exchange Commission on Form 10-
K, the audited financial statements and schedules of AmeriSource and its
Subsidiaries for
page 14
the period ended September 30, 1994, as prepared by Ernst & Young, will
fairly present in all material respect the financial position, results of
operations and cash flows of AmeriSource as the dates and for the periods
to which they relate and will have been prepared in accordance with general
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein, and
(e) no information supplied by or on behalf of ARC or AmeriSource to
the Agent or the Revolving Purchasers in connection with the Transaction
Documents (including without limitation the information contained in the
Syndication Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained
herein or therein not misleading in light of the circumstances under which
they were made.
ARTICLE VII
CONDITIONS
SECTION 7.01 Conditions to Initial Purchase. The obligation of each
------------------------------
Revolving Purchaser to make its initial Purchase shall be subject to the
satisfaction of the conditions precedent that it shall have received (x) a duly
executed and authenticated Certificate registered in its name and in a Stated
Amount equal to the amount set out opposite its name on the signature page of
this Agreement, (y) reimbursement of any expenses referred to in Section 10.05
-------------
for which invoices have been presented and (z) an original (except as indicated
below) counterpart of the following (each of which, if not in a form attached to
this Agreement, shall be in form and substance satisfactory to the Revolving
Purchaser):
(a) each of the Pooling Agreement, the Purchase Agreement and the
Subscription Agreement (each of which shall have been finalized in a manner
satisfactory to the Agent and ARC), which shall be in full force and
effect, and all actions required to be taken under those documents in
connection with the issuance of the Certificates shall have been taken,
(b) photocopies of each Account Agreement, of each closing document
delivered pursuant to the Purchase Agreement and of a demand subscription
agreement dated not later than the First Issuance Date between ARC and
AmeriSource,
(c) a certificate of the Secretary of AmeriSource to the effect that
the conditions precedent to the effectiveness of the Inventory Credit
Agreement and any necessary amendments to other debt documents shall have
been satisfied or waived; and the Intercreditor Agreement shall have been
executed by all parties thereto and delivered to the Trustee,
page 15
(d) a certificate of the Secretary, or an Assistant Secretary, of each
of ARC and the Servicer with respect to:
(i) attached copies of resolutions of its Board of Directors then
in full force and effect authorizing the execution, delivery and
performance of the Transaction Documents,
(ii) the incumbency and signatures of those of its officers
authorized to act with respect to the Transaction Documents, and
(iii) attached copies of its certificate of incorporation and by-
laws,
(e) a certificate of an Authorized Officer of each of ARC and the
Servicer as to the satisfaction of the conditions precedent set forth in
Section 7.02,
------------
(f) a certificate of an appropriate officer of the Trustee stating
that the Pooling Agreement has been duly authorized, executed and delivered
by the Trustee and the Certificates have been duly authenticated by the
Trustee in accordance with the Pooling Agreement and an opinion of counsel
to the Trustee as to related matters,
(g) confirmation satisfactory to the Agent that the following have
been placed with Lexis Document Services or another filing service selected
by the Agent for filing, the filing to occur on the First Issuance Date or
the first Business Day thereafter:
(i) UCC financing statements naming the Seller, as seller/debtor,
ARC, as secured party/purchaser, and the Trustee, as assignee of the
secured party, in each office where the filing is necessary for the
perfection of the sales of Receivables and Transferred Assets by each
Seller to ARC, and
(ii) UCC financing statements naming ARC, as seller/debtor, and
the Trustee, as secured party, in each office where the filing is
necessary for the perfection of the transfers of Receivables and Trust
Assets by ARC to the Trust,
(h) results of recent searches of the UCC filing records in each
office in which a filing referred to in subsection (g) has been made for
--------------
filings against the Seller (including any predecessors in interest to
Seller going back five years) and ARC, showing no filings of record that
cover any of the Receivables or the Transferred Assets other than (i) the
financing statements referred to in subsection (g) (if shown in the
--------------
searches) and (ii) any other filings as to which the Agent has received
signed UCC-3 termination statements or pay-off letters in form and
substance satisfactory to it,
page 16
(i) opinions addressed to the Agent and the Revolving Purchasers of
Dechert Price & Rhoads, special counsel to ARC and the Servicer, as to the
matters, and in such form and substance, as shall be satisfactory to the
Agent,
(j) evidence, reasonably satisfactory to the Agent and the Revolving
Purchasers, of the payment of all taxes, fees and other governmental
charges, if any, incidental to the issuance of the Certificates and to the
consummation of the transactions contemplated hereunder and under the
Pooling Agreement,
(k) solvency certificates, in form and substance satisfactory to the
Agent, with respect to each of ARC and AmeriSource, signed by their chief
financial officers,
(l) a rating letter of S&P pursuant to which it shall have rated the
Certificates "A" or better,
(m) a signed fee letter between AmeriSource and the Agent and payment
of the upfront fees referred to in that letter and all other reasonable
fees and expenses of the Agent (including the reasonable fees and expenses
of counsel) in connection with the preparation, negotiation and execution
of this Agreement, the Supplement and the other Transaction Documents,
(n) an agreed-upon procedures letter, in form and substance
satisfactory to the Agent, from Ernst & Young, with respect to certain
historical information provided by AmeriSource with respect to the
Receivables and included in the Syndication Documents,
(o) a signed letter from AmeriSource and ARC, in form and substance
satisfactory to the Agent, identifying and approving the Syndication
Documents, and
(p) any other information, certificates, opinions and documents as the
Agent may have reasonably requested.
In addition, the initial Purchase hereunder shall be subject to the
conditions precedent that (x) ARC and AmeriSource shall have disclosed to the
Agent and the initial Revolving Purchasers their plans for the refinancing of
the Certificates, including reasonable detail as to the timing of the
refinancing and any potential restrictions thereon or impediments thereto, and
(y) the Agent and the initial Revolving Purchasers shall be satisfied with the
form and substance of the plans.
If, (x) the conditions specified above have not been fulfilled on or prior
to December 16, 1994 or (y) on the First Issuance Date, any condition specified
in this Agreement shall not have been fulfilled when and as required in this
Agreement or waived by the Revolving Purchasers, in each case a Revolving
Purchaser's obligations to purchase the Certificates pursuant to this Agreement
may be terminated by notice to ARC. In addition, if, under the
page 17
circumstances, it shall not be feasible for the Revolving Purchasers to invest
on the date the funds that are held available by the Revolving Purchasers for
the Purchase, ARC shall pay the Revolving Purchasers interest on the funds at
the Alternate Base Rate from the date of the notice until the next succeeding
Business Day on which it is feasible for the Revolving Purchasers to invest the
funds. Nothing in this paragraph shall operate to relieve ARC from any of its
obligations hereunder or otherwise waive any of the Revolving Purchasers' rights
against ARC.
SECTION 7.02 Conditions to Each Purchase. The obligation of each
---------------------------
Revolving Purchaser to make any Purchase on any day (including those comprising
the initial Purchase) shall be subject to the Agent's receipt of the Daily
Report for that day and to the conditions precedent that on the date of the
Purchase, before and after giving effect thereto and to the application of any
proceeds therefrom, the following statements shall be true:
(a) the representations and warranties of ARC and AmeriSource set out
in this Agreement, with the exception of Sections 6.02(b) and 6.02(c)
---------------- -------
(which shall have been true and accurate on the date hereof), are true and
accurate as of that date with the same effect as though made on that date
(unless specifically stated to relate to an earlier date), and
(b) neither the Liquidation Commencement Date nor the Pay-Out
Commencement Date has occurred, and no Liquidation Event or Unmatured
Liquidation Event has occurred and is continuing.
The giving of any notice pursuant to Section 2.02 shall constitute a
------------
representation and warranty by ARC and AmeriSource that the foregoing statements
(limited, in the case of subsection (a) to the representations and warranties of
--------------
the Person deemed to make the representation and warranty referred to in this
sentence) are true.
ARTICLE VIII
AFFIRMATIVE COVENANTS
SECTION 8.01 Affirmative Covenants. ARC and AmeriSource each severally
---------------------
covenants and agrees that, until the Certificates have been paid in full and the
obligations of the Revolving Purchasers to make Purchases have terminated, it
will:
(a) duly and timely perform all of its covenants and obligations under
each Transaction Document to which it is a party,
(b) not, except as contemplated by Section 13.01 of the Pooling
Agreement, amend or otherwise modify any Transaction Document to which it
is a party or grant
page 18
any waiver or consent thereunder, without the prior written consent of
Revolving Purchasers having percentages that aggregate at least 66 2/3%
(the "Required Revolving Purchasers"); provided, however, that no amendment
shall (i) reduce in any manner the amount of, or delay the timing of,
allocations, payments or distributions in respect of any Certificate
without the consent of the related Revolving Purchaser, (ii) amend, modify
or waive any provision of this Agreement that requires the approval or
consent of a specified percentage of Revolving Purchasers without the
consent of that percentage of Revolving Purchasers and (iii) amend, modify
or waive the provisions of this section with respect to the rights of any
Revolving Purchaser without the consent of that Revolving Purchaser,
(c) promptly deliver to each Revolving Purchaser (in addition to the
materials required to be delivered pursuant to the Pooling Agreement) the
information, documents, records or reports respecting the Trust or the
condition or operations, financial or otherwise, of ARC, AmeriSource and
the Seller as the Revolving Purchaser may from time to time reasonably
request,
(d) at the same time any report (including any Daily Report,
Settlement Statement or annual auditors' report), notice or other document
is provided to the Trustee, or caused to be provided, by ARC or the
Servicer under the Pooling Agreement, provide the Agent with a copy of the
report, and
(e)(i) use reasonable efforts to cause the Trustee to issue one or
more additional Series or Purchased Interests in order to repay in full the
Investor Revolving Amount and all other Obligations owed in respect of the
Certificates as soon as practicable, and (ii) not cause the Trustee to
issue any other Series or Purchased Interest except for the purposes
described in clause (i); provided, that any such issuance must yield
----------
sufficient proceeds to repay in full the Investor Revolving Amount and all
other Obligations owed in respect of the Certificates.
In addition, it is understood and agreed that so long as the Certificates
remain outstanding, the Servicer and ARC shall, subject to the proviso to the
next sentence, during regular business hours upon not less than five Business
Days' prior notice, permit the Trustee or the Agent (or such other Person as the
Trustee or the Agent may designate from time to time), or their respective
agents or representatives (including certified public accountants or other
auditors), as an expense of the Servicer paid out of the Servicing Fee, (i) to
examine and make copies of and abstracts from, and to conduct accounting reviews
of, all Records in the possession or under the control of the Servicer or ARC,
including the related Contracts and purchase orders, invoices and other
agreements related thereto, and (ii) to visit the offices and properties of the
Servicer and ARC for the purpose of examining such materials described in clause
------
(i), and to discuss matters relating to the Receivables or the Related
- - - ---
Transferred Assets or the performance by the Servicer or ARC of their respective
obligations under any Transaction Document with any officer, employee or
representative of
page 19
the Servicer or ARC. The Trustee or the Agent may (but shall not be obligated
to) conduct, or cause its agents or representatives to conduct, reviews of the
types described in this paragraph (each such review, a "Receivables Review")
whenever the Trustee or the Agent, in its reasonable judgment, deems any such
review appropriate, and the Trustee or the Agent shall conduct, or cause its
agents or representatives to conduct, such a review if requested by either the
Agent or the Majority Investors; provided, that, prior to February 28, 1995 or
the occurrence and continuance of a Liquidation Event or an Unmatured
Liquidation Event, the Trustee or the Agent shall have the right to request a
Receivables Review not more than twice in any calendar year; and provided
further, that, after February 28, 1995 or after the occurrence and during the
continuance of a Liquidation Event or an Unmatured Liquidation Event, there
shall be no limitation on the number of Receivables Reviews that are conducted
by or on behalf of the Trustee or the Agent. Notwithstanding the five-day notice
provision above, no such notice shall be required if a Liquidation Event shall
have occurred and be continuing.
In connection with clause (e) above, ARC and AmeriSource will assist the
----------
Financial Advisors in the marketing of any additional Series and Purchase
Interests to be issued and (promptly upon request) provide all the information
necessary to any Financial Advisor to market such facilities; provided, however,
that any information distributed in connection with such marketing shall be
subject to the confidentiality standards set forth in the agreements among the
Financial Advisors and AmeriSource. In addition, ARC and AmeriSource will use
their reasonable best efforts to make appropriate officers and representatives
of AmeriSource and ARC available to participate in the information meetings for
potential investors at such times and places as may reasonably be requested.
ARTICLE IX
THE AGENT
SECTION 9.01 Appointment. The Revolving Purchasers hereby designate
-----------
Bankers Trust Company as Agent. Each Revolving Purchaser hereby irrevocably
authorizes the Agent to take action on its behalf under the provisions of the
Transaction Documents and any other instruments and agreements referred to
therein and to exercise the powers and perform the duties hereunder and
thereunder that are specifically delegated to or required of the Agent by the
terms hereof and thereof, and any other powers as are reasonably incidental
thereto. The Agent may perform any of its duties by or through its respective
officers, directors, agents or employees.
SECTION 9.02 Nature of Duties. The Agent shall not have any duties or
----------------
responsibilities except those expressly set forth in this Agreement. Neither the
Agent nor any of its officers, directors, agents or employees shall be liable
for any action taken or omitted by it or them under any Transaction Document or
in connection herewith or
page 20
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Agent shall be mechanical and administrative in nature, the
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Revolving Purchaser, and nothing in any Transaction Document,
expressed or implied, is intended to or shall be construed as to impose upon the
Agent any obligations in respect of any Transaction Document except as expressly
set forth herein.
SECTION 9.03 Lack of Reliance on the Agent and BT Securities Corporation.
-----------------------------------------------------------
Independently and without reliance upon the Agent or BT Securities Corporation,
each Revolving Purchaser, to the extent it deems appropriate, has made and shall
continue to make (a) its own independent investigation of the financial
condition and affairs of ARC, the Seller, the Servicer and the Trust in
connection with the making and the continuation of each Purchase and the taking
or not taking of any action in connection herewith and (b) its own appraisal of
the creditworthiness of ARC, the Seller and the Servicer and the merits and
risks of an investment in the Certificates, and, except as expressly provided in
this Agreement, the Agent shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Revolving Purchaser with any
credit or other information with respect thereto, whether coming into its
possession before the making of a Purchase or at any time or times thereafter.
The Agent shall not be responsible to any Revolving Purchaser for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of the Transaction Documents or the
financial condition of ARC, the Seller, the Servicer or the Trust or be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of any Transaction Document, or the
financial condition of ARC, the Seller, the Servicer or the Trust or the
existence or possible existence of any Liquidation Event or Unmatured
Liquidation Event.
SECTION 9.04 Certain Rights of the Agent. If the Agent shall request
---------------------------
instructions from the Required Revolving Purchasers with respect to any act or
action (including failure to act) in connection with any Transaction Document,
the Agent shall be entitled to refrain from acting or taking the action unless
and until the Agent shall have received instructions from the Required Revolving
Purchasers, and the Agent shall not incur liability to any person by reason of
so refraining. Without limiting the foregoing, no Revolving Purchaser shall have
any right of action whatsoever against the Agent as a result of the Agent acting
or refraining from acting under any Transaction Document in accordance with the
instructions of the Required Revolving Purchasers as for refraining to act in
the absence of instruction.
SECTION 9.05 Reliance. The Agent shall be entitled to rely, and shall be
--------
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any person that the Agent believed to be the proper person. The Agent may
consult with legal counsel (including counsel for any AmeriSource Person),
page 21
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in accordance with the advice
of such counsel, accountants or experts.
SECTION 9.06 Indemnification. To the extent the Agent is not reimbursed
---------------
and indemnified by ARC or the Servicer, the Revolving Purchasers will reimburse
and indemnify the Agent ratably in accordance with their respective Percentages
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or disbursements
of whatsoever kind or nature that may be imposed on, asserted against or
incurred or suffered by the Agent (including fees and expenses of legal counsel,
accountants and experts) in performing its duties or as a result of any action
taken or omitted to be taken by the Agent under any Transaction Document or in
any way relating to or arising out of any Transaction Document; provided, that
no Revolving Purchaser shall be liable for any portion of these liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable order).
SECTION 9.07 The Agent in Its Individual Capacity. With respect to its
------------------------------------
obligation to purchase Trust Interests under this Agreement, the Agent shall
have the rights and powers specified herein for a Revolving Purchaser and may
exercise the same rights and powers as though it were not performing the duties
of the "Agent" specified herein, and the term "Revolving Purchasers," "Required
Revolving Purchasers" and "Holders" or "payees" of any Certificates or any
similar terms shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity. The Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with ARC or the Servicer or any AmeriSource Person as if the
Agent were not performing the duties specified herein, and may accept fees and
other consideration from ARC or the Servicer for services in connection with
this Agreement and otherwise without having to account for the same to the
Revolving Purchasers. Each of the parties hereto acknowledges that the Agent
will be acting both as a lender under the Inventory Credit Agreement and as a
Revolving Purchaser and the Agent under this Agreement.
SECTION 9.08 Resignation by the Agent. (a) The Agent may resign at any
------------------------
time by giving notice to ARC and the Revolving Purchasers. The resignation shall
take effect upon the appointment of a successor Agent pursuant to subsections
-----------
(b) and (c) below or as otherwise provided below.
- - - --- ---
(b) Upon any notice of resignation, the Required Revolving Purchasers shall
appoint a successor Agent hereunder who shall be a commercial bank or trust
company reasonably acceptable to ARC (it being understood and agreed that any
Revolving Purchaser is deemed to be acceptable to ARC).
page 22
(c) If a successor Agent is not appointed within 30 days after the delivery
of the notice referred to in subsection (a), the Agent, with the consent of
--------------
ARC, shall then appoint a successor Agent who shall serve as Agent hereunder
until the time, if any, that the Required Revolving Purchasers appoint a
successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to subsection (b) or
--------------
(c) above by the 60th day after the date notice of resignation was given by the
- - - ---
Agent, the Agent's resignation shall become effective and the Revolving
Purchasers shall thereafter perform all the duties of the Agent under the
Transaction Documents until the time, if any, that the Revolving Purchasers
appoint a successor Agent as provided above.
SECTION 9.09 Reference Bank. By its execution of this Agreement, the
--------------
Agent agrees to act as the Reference Bank for purposes of calculations relating
to the Certificates, including as contemplated by the definition of "Alternate
Base Rate."
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Amendments. No amendment to or waiver of any provision of
----------
any Transaction Document, nor consent to any departure by ARC therefrom, shall
in any event be effective unless the same shall be in writing and signed by ARC,
the Agent and the Required Revolving Purchasers; provided, however, that no
amendment shall (a) decrease the outstanding amount of, or extend the repayment
of or any scheduled payment date for the payment of, any Investor Revolving
Yield in respect of the Certificate or any fees owed to a Revolving Purchaser
without its prior written consent, (b) forgive or waive or otherwise excuse any
repayment of the Investor Revolving Invested Amount without the prior written
consent of each Revolving Purchaser affected thereby, (c) increase the Stated
Amount of any Revolving Purchaser without its prior written consent, (d) waive
any Liquidation Event arising from an Event of Bankruptcy with respect to ARC or
the Seller without the consent of each Revolving Purchaser and prior notice to
the Applicable Rating Agencies, (e) amend or modify the Percentage of any
Revolving Purchaser without its prior written consent, (f) waive any of the
requirements hereunder that the interests of the Trustee in the Receivables and
the other Trust Assets be perfected by appropriate UCC filings without the prior
written consent of each Revolving Purchaser or (g) amend, modify or otherwise
affect the rights or duties of the Agent hereunder without the prior written
consent of the Agent; provided, however, that this Agreement may not be amended
unless ARC shall have delivered the proposed amendment to the Applicable Rating
Agency at least ten Business Days (or a shorter period that shall be acceptable
to it) prior to the execution and delivery thereof and the Rating Agency
Condition has been satisfied with respect to the amendment. Each Revolving
Purchaser shall be bound by any modification, waiver or consent authorized by
page 23
this section, whether or not its Certificate shall have been marked to indicate
the modification, waiver or consent.
SECTION 10.02 No Waiver; Remedies. Any waiver, consent or approval given
-------------------
by any party hereto shall be effective only in the specific instance and for the
specific purpose for which given, and no waiver by a party of any breach or
default under this Agreement shall be deemed a waiver of any other breach or
default. No failure on the part of any party hereto to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder, or any abandonment or
discontinuation of steps to enforce the right, power or privilege, preclude any
other or further exercise thereof or the exercise of any other right. No notice
to or demand on any party hereto in any case shall entitle such party to any
other or further notice or demand in the same, similar or other circumstances.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 10.03 Successors and Assigns; Assignments. (a) This Agreement
-----------------------------------
shall be binding upon, and inure to the benefit of, ARC, the Servicer, the
Agent, the Revolving Purchasers and their respective successors and assigns;
provided, however, that neither ARC nor the Servicer may assign its rights or
obligations hereunder or in connection herewith or any interest herein
(voluntarily, by operation of law or otherwise) without the prior written
consent of all the Revolving Purchasers; and provided further, that no Revolving
Purchaser may transfer, pledge, assign, sell participations in or otherwise
encumber its rights or obligations hereunder or in connection herewith or any
interest herein except as permitted under this section.
(b) Each Revolving Purchaser may at any time sell to one or more banks or
other entities ("Participants") participating interests in all or any portion of
its Certificate and its obligations hereunder (its "Credit Exposure"). In the
event of any sale by a Revolving Purchaser of participating interests to a
Participant, the Revolving Purchaser shall notify ARC of the identity of the
Participant upon a request by ARC, the Revolving Purchaser's obligations under
this Agreement shall remain unchanged, the Revolving Purchaser shall remain
solely responsible for the performance thereof, and the Revolving Purchaser
shall remain the holder of its rights under its Certificate and this Agreement
for all purposes under this Agreement, and the other parties to the Transaction
Documents shall continue to deal solely and directly with the Revolving
Purchaser in connection with such rights and obligations under this Agreement.
ARC agrees that each Participant shall be entitled to the benefits of Sections
--------
4.03, 4.04, 4.05 and 4.06 with respect to its participation in the Certificate.
- - - ---- ---- ---- ----
The Revolving Purchasers agree that any agreement between them and any
Participant in respect of a participating interest shall not restrict the
Revolving Purchasers' right to agree to any amendment, supplement or
modification of the Transaction Documents except to (i) extend the final
maturity of any Obligation, (ii) reduce the rate or extend the time of payment
of interest thereon or any fees owed to the Revolving Purchasers under the
Transaction Documents, (iii) reduce the principal amount of any Obligation, (iv)
release or
page 24
direct the release of all or substantially all of the Trust Assets or the
Trustee's claim to the Trust Assets, (v) reduce substantially the amount of any
reserve included in the calculation of the Base Amount, (vi) increase the amount
of the participation from the amount thereof then in effect (it being understood
that any waiver of any Liquidation Event or Unmatured Liquidation event will not
constitute a change in the terms of such participation, and that any increase in
a commitment or Stated Amount of a Certificate shall be permitted without the
consent of the Participant if the Participant's participation is not increased
as a result thereof), or (vii) permit assignment or transfer by ARC or
AmeriSource of its rights or obligations under the Transaction Documents.
(c) Subject to Article VI of the Pooling Agreement and the next sentence
hereof, any Revolving Purchaser may at any time assign to one or more banks or
other financial institutions ("Assignees") all or any part of its Credit
Exposure; provided, that (i) unless assigned to an Affiliate of the Revolving
Purchaser, it assigns all of its Credit Exposure or a portion of its Credit
Exposure in an amount not less than $5,000,000, (ii) after the assignment, the
Revolving Purchaser and its Affiliates continue to hold at least $5,000,000 of
Credit Exposure or have reduced their Credit Exposure to $0, (iii) any Assignee,
other than an Affiliate of the Revolving Purchaser, must be reasonably
acceptable to the Agent, which acceptance shall not be delayed or withheld
unreasonably, (iv) if such Assignee is organized under the laws of a
jurisdiction outside the United States of America, such Assignee shall satisfy
the requirements of Section 4.06(c), or amounts payable to it under Section 4.06
--------------- ------------
shall be limited to amounts that would be payable if such Assignee had complied
with Section 4.06(c), and (v) unless the Assignee is a bank with paid-in capital
---------------
and surplus of at least $100,000,000 or a financial institution that is a party
to the Seller Credit Agreement, any such assignment shall be subject to the
prior written consent of ARC, which consent shall not be unreasonably delayed or
withheld. The requirements of clauses (i), (ii), (iii) and (v) of the preceding
----------- ---- ----- ---
sentence and the requirement that an Assignee be a bank or other financial
institution shall not apply to any Assignee of a fixed principal certificate
issued in connection with the restructuring of the Program as contemplated by
Section 10.12, so long as such Assignee is a qualified institutional buyer
- - - -------------
(within the meaning of Rule 144A under the Securities Act). In the event of any
assignment, the Revolving Purchaser shall comply with Article VI of the Pooling
Agreement and also shall give notice to ARC and the Agent and shall deliver to
the Agent, for acceptance and recording in its records, an assignment agreement
substantially in the form of Exhibit C together with a processing and
---------
recordation fee of $3,000. Within five Business Days of receipt thereof, the
Agent shall, if the assignment agreement has been fully executed by the
Assignee, the assignor Revolving Purchaser and ARC, is completed and is in
substantially the form of Exhibit C, execute the assignment agreement and record
---------
the information contained therein in its records. Upon the earlier of the
expiration of the five Business Day period or the date of the recording, the
assignment will become effective. ARC, the Agent and the Revolving Purchasers
agree to extend the rights and benefits with respect to ARC under this Agreement
to the Assignee to the extent the Assignee would have had if it were a Revolving
Purchaser that was an original signatory to this Agreement; provided, that ARC
shall be entitled to continue to deal solely
page 25
and directly with the assignor Revolving Purchaser in connection with the
interests so assigned to the Assignee until the assignment agreement and any
required fee, as described above, shall have been delivered to ARC and the Agent
by the Revolving Purchaser and the Assignee and the assignment shall have become
effective. Upon the effective assignment of its Credit Exposure, the Revolving
Purchaser shall be relieved of its obligations hereunder to the extent of the
assignment.
(d) The sale or assignment of any Credit Exposure to any Assignee or
Participant (each, a "Transferee") shall not be effective until it has agreed to
be bound by the provisions of Sections 10.14 and 10.15. ARC and AmeriSource
-------------- -----
each authorize the Revolving Purchasers to disclose to any Transferee and any
prospective Transferee any and all information in their possession concerning
ARC and AmeriSource that has been delivered to them by ARC, AmeriSource or the
Trustee in connection with their credit evaluation of the Trust prior to
entering into this Agreement. Further, each of ARC and AmeriSource agrees, upon
the request of a Revolving Purchaser, to cause Ernst & Young to deliver to any
potential Transferee a reliance letter (for the benefit of such potential
Transferee) with respect to the agreed upon procedures letter described in
Section 7.01(n).
- - - ---------------
(e) Notwithstanding any other provisions set forth in this Agreement, the
Revolving Purchasers may at any time create a security interest in all or any
portion of their rights under this Agreement and the Certificates in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
(f) ARC and AmeriSource agree to assist the Agent in any marketing of the
Certificates or of any Investor Certificates or Purchased Interests issued or
sold in a restructuring of the Program (as contemplated by the final paragraph
of Section 10.12) and (promptly upon request) to provide all information deemed
-------------
necessary by the Agent in such marketing; provided, however, that any
information distributed in connection with such marketing shall be subject to
the confidentiality standards set forth in Section 10.15. In addition, ARC and
-------------
AmeriSource will use their reasonable best efforts to make appropriate officers
and representatives of AmeriSource and ARC available to participate in the
information meetings for potential investors at such times and places as the
Agent may reasonably request.
SECTION 10.04 Survival of Agreement. All covenants, agreements,
---------------------
representations and warranties made herein and in the Certificates delivered
pursuant hereto shall survive the making and the repayment of the Purchases and
the execution and delivery of this Agreement and the Certificates and shall
continue in full force and effect until all Obligations have been paid in full
and all commitments of the Revolving Purchasers hereunder have been terminated.
In addition, the obligations of ARC under Sections 4.03, 4.04, 4.06 and 10.05
------------- ---- ---- -----
and the obligations of the Revolving Purchasers under Section 9.06 shall survive
------------
the termination of this Agreement.
page 26
SECTION 10.05 Expenses; Indemnification. ARC and AmeriSource jointly and
-------------------------
severally shall pay on demand (a) all reasonable out-of-pocket fees and expenses
(including reasonable attorneys fees and expenses) of the Agent incurred in
connection with the preparation, execution, delivery, administration, amendment,
modification and waiver of the Transaction Documents and the making and
repayment of the Purchases, including any Servicer or collection agent fees paid
to any third party for services rendered to the Revolving Purchasers and the
Agent in collecting the Receivables and (b) all reasonable out-of-pocket fees
and expenses of the Revolving Purchasers and the Agent (including reasonable
attorneys fees and expenses of their counsel) incurred in connection with the
enforcement of the Transaction Documents against ARC, the Servicer and the
Seller and in connection with any workout or restructuring of the Transaction
Documents. In addition, ARC will pay any and all stamp and other taxes and fees
payable or determined to be payable in connection with the execution, delivery,
filing, recording or enforcement of this Agreement or any payment made under the
Transaction Documents, and hereby indemnifies and saves the Agent and the
Revolving Purchasers harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay the taxes
and fees. ARC and AmeriSource jointly and severally agree to reimburse and
indemnify the Agent and each Revolving Purchaser and their respective officers,
directors, shareholders, controlling Persons, employees and agents
(collectively, the "Indemnitees") from and against any and all actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature that
may be imposed on, asserted against or incurred or suffered by the Agent or the
Revolving Purchasers (including fees and expenses of legal counsel, accountants
and experts) in any way relating to or arising out of any Transaction Document.
Notwithstanding the foregoing (and with respect to clause (w) below,
----------
without prejudice to the rights that an Indemnitee may have pursuant to the
other provisions of the Transaction Documents), in no event shall any Indemnitee
be indemnified against any amounts (v) resulting from gross negligence or
willful misconduct on the part of any of its officers, directors, employees or
agents, (w) to the extent they include amounts in respect of Receivables and
reimbursement therefore that would constitute credit recourse to the Servicer
for the amount of any Receivable or Related Transferred Asset not paid by the
related Obligor, (x) to the extent they are or result from lost profits, (y) to
the extent they are or result from taxes (including interest and penalties
thereon) asserted with respect to (1) distributions on the Certificates, (2)
franchise or withholding taxes imposed on any Indemnitee other than the Trust or
the Trustee in its capacity as Trustee or (3) Federal or other income taxes on
or measured by the net income of the Indemnitee and costs and expenses in
defending against the same, or (z) to the extent that they constitute
consequential, special or punitive damages.
If for any reason the indemnification provided in this section is
unavailable to an Indemnitee or is insufficient to hold it harmless, then ARC
and AmeriSource jointly and severally shall contribute to the amount paid by the
Indemnitee as a result of any loss, claim, damage or liability in a proportion
that is appropriate to reflect not only the relative benefits
page 27
received by the Indemnitee on the one hand and ARC and AmeriSource on the other
hand, but also the relative fault of the Indemnitee (if any), ARC and
AmeriSource and any other relevant equitable considerations; provided, however,
that ARC's obligations under this section shall be paid by ARC only to the
extent that funds are available to make the payments after all amounts to be
paid to Investor Certificateholders and Holders of Purchased Interests pursuant
to Section 4.03(f) or 4.03(a) (as applicable) shall have been paid, and there
--------------- -------
shall be no recourse to ARC for all or any part of any amounts payable pursuant
to this section if the funds are at any time insufficient to make all or part of
any such payments.
SECTION 10.06 Characterization as Transaction Document; Entire Agreement.
----------------------------------------------------------
This Agreement shall be deemed to be a Transaction Document for all purposes of
the Pooling Agreement and the other Transaction Documents. This Agreement,
together with the documents delivered pursuant to Section 7.01 and the other
------------
Transaction Documents, including the exhibits and schedules thereto, contains a
final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
superseding all previous oral statements and other writings with respect
thereto.
SECTION 10.07 Notices. All communications hereunder shall be in writing
-------
(except that notices pursuant to Sections 3.01 and 3.03 may be given by
------------- ----
telephone promptly confirmed in writing or by facsimile transmission) and shall
be deemed to have been duly given if personally delivered, sent by overnight
courier or mailed by registered mail, postage prepaid and return receipt
requested, or transmitted by telex or facsimile transmission and confirmed by a
similar mailed writing to any party at the address for that party set forth (a)
on the signature page to this Agreement or (b) to another address as that party
may designate in writing to the Agent and ARC.
SECTION 10.08 Binding on Successors and Assigns. This Agreement shall
---------------------------------
inure to the benefit of and be binding upon ARC, the Revolving Purchasers and
their respective permitted successors and assigns. Nothing expressed herein is
intended or shall be construed to give any Person other than the Persons
referred to in the preceding sentence any legal or equitable right, remedy or
claim under or in respect of this Agreement.
SECTION 10.09 Severability of Provisions. Any covenant, provision,
--------------------------
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of the prohibition or unenforceability without invalidating the
remaining provisions of this Agreement.
SECTION 10.10 Counterparts. This Agreement may be executed in any number
------------
of counterparts (which may include facsimile) and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which together shall constitute one and the same
instrument.
page 28
SECTION 10.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.
SECTION 10.12 Failure to Refinance. If the Revolving Purchasers shall not
--------------------
have been repaid in full and their Stated Amount reduced to zero on or prior to
the 180th day falling after the date of the initial Purchase, then:
(a) ARC and AmeriSource will cooperate in good faith with the Agent to
restructure the Program and to design securities to be issued by the Trust
in order to facilitate the refinancing in full of the Certificates and/or
the complete assignment by the initial Revolving Purchasers of their Credit
Exposure, which restructuring and design may include, but not be limited
to, (i) the creation of senior and subordinated classes of securities, (ii)
the creation of fixed principal and variable principal securities with
varying maturities and interest rates, it being understood that no
specified proportion of securities with fixed versus variable principal or
fixed versus variable interest rates need be maintained, and that the
proportion with respect with either type of principal may be 0% (provided,
that the aggregate principal amount of fixed principal certificates shall
not, without ARC's and AmeriSource's consent, exceed the greater of (x)
$175,000,000 and (y) the average, for the preceding six Calculation Periods
(or, if less, the number of complete Calculation Periods elapsed since the
date of this Agreement), of the lowest Base Amount properly reported in any
Daily Report during each such Calculation Period), (iii) changes to the
number and type of investors required to take (or omit to take a particular
action (such as a waiver, amendment or instruction to the Trustee)), (iv)
the imposition of make-whole payments or other prepayment premiums if the
securities are repaid prior to their scheduled maturity voluntarily, as the
result of the Trustee's receipt of a Stop Date Notice or for any other
reason agreed to by AmeriSource, (v) any changes or modification necessary
to enable an investor to qualify for the portfolio interest exemption, thus
permitting the securities to be marketed to investors who do not have a
place of business in the United States, and (vi) any changes or
modifications necessary to satisfy then current requirements of S&P (or any
other Applicable Rating Agency) for trade receivables securitizations rated
"AAA" (in the case of senior securities) or "A" (in the case of subordinate
securities), and
(b) if requested to do so by any Revolving Purchaser, the Trustee or
the Agent shall exercise its rights under the final paragraph of Section
-------
8.01 to conduct a Receivables Review.
----
ARC and AmeriSource shall enter into the amendments to the Transaction
Documents as may be requested by the Agent as necessary or desirable to
restructure the Program and design securities as contemplated in subsection (a);
--------------
provided, that, notwithstanding the foregoing, neither ARC nor AmeriSource shall
be required to consent to any amendment to
page 29
any Transaction Document that it determines in its sole and reasonable
discretion to be materially adverse to its own interests.
SECTION 10.13 Tax Characterization. Each party to this Agreement (a)
--------------------
acknowledges that it is the intent of the parties to this Agreement that, for
Federal, state and local income and franchise tax purposes only, the
Certificates will be treated as evidence of indebtedness secured by the Trust
Assets and the Trust not be characterized as an association taxable as a
corporation, (b) agrees to treat the Certificates for Federal, state and local
income and franchise tax purposes as indebtedness and (c) agrees that the
provisions of the Transaction Documents shall be construed to further these
intentions.
SECTION 10.14 No Proceedings. Each of AmeriSource, the Agent (solely in
--------------
its capacity as such) and each of the Revolving Purchasers (solely in its
capacity as such) hereby agrees that it will not institute against ARC or the
Trust, or join any other Person in instituting against ARC or the Trust, any
insolvency proceeding (namely, any proceeding of the type referred to in the
definition of "Event of Bankruptcy") so long as any Investor Certificates issued
by the Trust shall be outstanding or there shall not have elapsed one year plus
one day since the last day on which any Investor Certificates shall have been
outstanding. The foregoing shall not limit the right of AmeriSource or any
Revolving Purchaser to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against ARC or the
Trust by any other Person. In addition, each of the foregoing parties agree that
all amounts owed to them by the Trust or ARC shall be payable solely from
amounts that become available for payment pursuant to the Pooling Agreement and
the Supplement, and no amounts shall constitute a claim against the Trust or ARC
to the extent that they are in excess of the amounts available for their
payment.
SECTION 10.15 Confidentiality. The Agent and each Revolving Purchaser
---------------
acknowledge that all information concerning the Seller, ARC, any AmeriSource
Person, the Receivables and the Related Transferred Assets (collectively the
"Confidential Information") that has been, is being and will be delivered or
made available by the Seller and ARC to the Agent and the Revolving Purchasers
is highly confidential; provided, that the term "Confidential Information" shall
not include (x) any of the foregoing information that is or becomes generally
available to the public or is or becomes available to the Agent or a Revolving
Purchaser (as applicable) on a nonconfidential basis or was or becomes known to
the Agent or a Revolving Purchaser (as applicable) on a nonconfidential basis
without violation of this section, (y) the Transaction Documents or any Daily
Report or Settlement Statement delivered thereunder or (z) the information
included in the Syndication Documents.
Each of the Trustee and the Revolving Purchasers hereby agrees to use its
best efforts to hold in confidence all Confidential Information; provided, that
nothing herein shall prevent the Trustee or any Revolving Purchaser from
delivering Confidential Information to:
page 30
(a) the respective affiliates, directors, officers, employees, agents
and professional consultants (each of which being a "Representative") of
the Agent or a Revolving Purchaser who, in the case of each Representative,
shall be subject to confidentiality arrangements at least substantially
comparable hereto,
(b) any Federal or state regulatory authority having jurisdiction over
the Agent or the Revolving Purchasers,
(c) any Transferee or potential Transferee, who shall be subject to a
written confidentiality agreement at least substantially comparable hereto,
(d) any Person engaged by AmeriSource or ARC to assist in structuring,
marketing or otherwise facilitating arrangements necessary to refinance the
Certificates (including, without limitation, the Financial Advisors),
(e) any Person pursuant to subpoena or other court process or
otherwise in connection with applicable litigation, or
(f) any Person to the extent required by applicable law.
The Agent and each Revolving Purchaser recognize the competitive value and
confidential nature of the Confidential Information and the irreparable damage
that could result to the Seller, ARC or the other AmeriSource Persons if it is
disclosed to any third party in violation of the requirements of this section.
The Agent and each Revolving Purchaser recognize that money damages would not be
a sufficient remedy for any breach of the requirements of this section, and each
of the foregoing severally agrees that the Seller, ARC and any other AmeriSource
Person shall be entitled to equitable relief, including injunctive relief and
specific performance, in the event of any breach or potential breach of the
requirements of this section, in addition to all other remedies available to the
Seller, ARC and the other AmeriSource Persons at law or in equity. None of the
requirements of this section may be waived or amended except by prior written
consent of the Seller, ARC or the other AmeriSource Person, as applicable, who
provided the information to the Person who wishes to disclose it, which written
consent shall expressly refer to the requirements of this section.
page 31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers and delivered as of the day and
year first above written.
AMERISOURCE RECEIVABLES CORPORATION
By: ____________________________________
Title: ________________________________
Address: P.O. Box 1735
Southeastern, Pennsylvania 19399-1735
Attention: Kurt Hilzinger
Telephone: (610) 296-4480
Facsimile: (610) 993-9085
AMERISOURCE CORPORATION
By: ____________________________________
Title: ________________________________
Address: 300 Chester Field Parkway
Malvern, Pennsylvania 19355
Attention: Kurt Hilzinger
Telephone: (610) 296-4480
Facsimile: (610) 993-9085
BANKERS TRUST COMPANY,
as Agent and, individually,
as a Revolving Purchaser
By: _____________________________________
Title: _________________________________
Address: ________________________________
________________________________
Attention: ______________________________
Telephone: ______________________________
Facsimile: ______________________________
STATED AMOUNT: __________________
PERCENTAGE: 100%
EXHIBIT A
to Revolving Certificate Purchase
Agreement Series 1994-1
FORM OF POOLING AND SERVICING AGREEMENT
---------------------------------------
EXHIBIT B
to Revolving Certificate Purchase
Agreement Series 1994-1
FORM OF RECEIVABLES PURCHASE AGREEMENT
--------------------------------------
EXHIBIT C
to Revolving Certificate Purchase
Agreement Series 1994-1
FORM OF SERIES 1994-1 SUPPLEMENT
--------------------------------
================================================================================
SERIES 1994-1 SUPPLEMENT
TO POOLING AND SERVICING AGREEMENT
dated as of December 13, 1994
among
AMERISOURCE RECEIVABLES CORPORATION,
as transferor,
AMERISOURCE CORPORATION,
as initial Servicer,
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
............................................................................. 2
SECTION 1.01 Definitions.................................................... 2
-----------
ARTICLE II
PURCHASE AND SALE OF THE CERTIFICATES
............................................................................. 2
SECTION 2.01 The Commitments........................................... 2
---------------
SECTION 2.02 Purchase Mechanics........................................ 3
------------------
SECTION 2.03 Reduction of Stated Amounts............................... 4
---------------------------
SECTION 2.04 Certificates.............................................. 4
------------
ARTICLE III
REDUCTIONS IN INVESTOR REVOLVING INVESTED AMOUNT
............................................................................. 5
SECTION 3.01 Negative Variable Amounts................................. 5
-------------------------
SECTION 3.02 Other Reductions.......................................... 5
----------------
SECTION 3.03 Notice to Revolving Purchasers............................ 6
------------------------------
ARTICLE IV
INVESTOR REVOLVING YIELD AND FEES
............................................................................. 6
SECTION 4.01 Investor Revolving Yield.................................. 6
------------------------
SECTION 4.02 Non-Usage Fees............................................ 7
--------------
SECTION 4.03 Yield Protection.......................................... 7
----------------
SECTION 4.04 Illegality; Unavailability................................ 10
--------------------------
SECTION 4.05 Indemnity................................................. 10
---------
SECTION 4.06 Taxes..................................................... 11
-----
ARTICLE V
OTHER PAYMENT TERMS
............................................................................. 12
SECTION 5.01 Time and Method of Payment................................ 12
--------------------------
SECTION 5.02 Pro Rata Treatment........................................ 13
------------------
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
............................................................................. 13
SECTION 6.01 ARC....................................................... 13
---
SECTION 6.02 AmeriSource............................................... 14
-----------
ARTICLE VII
CONDITIONS
............................................................................. 15
SECTION 7.01 Conditions to Initial Purchase............................ 15
------------------------------
SECTION 7.02 Conditions to Each Purchase............................... 18
---------------------------
ARTICLE VIII
AFFIRMATIVE COVENANTS
............................................................................. 18
SECTION 8.01 Affirmative Covenants..................................... 18
---------------------
ARTICLE IX
THE AGENT
............................................................................. 20
SECTION 9.01 Appointment............................................... 20
-----------
SECTION 9.02 Nature of Duties.......................................... 20
----------------
SECTION 9.03 Lack of Reliance on the Agent and BT Securities
-----------------------------------------------
Corporation............................................. 21
-----------
SECTION 9.04 Certain Rights of the Agent............................... 21
---------------------------
SECTION 9.05 Reliance.................................................. 21
--------
SECTION 9.06 Indemnification........................................... 22
---------------
SECTION 9.07 The Agent in Its Individual Capacity...................... 22
------------------------------------
SECTION 9.08 Resignation by the Agent.................................. 22
------------------------
SECTION 9.09 Reference Bank............................................ 23
--------------
ARTICLE X
MISCELLANEOUS PROVISIONS
............................................................................. 23
SECTION 10.01 Amendments............................................... 23
----------
SECTION 10.02 No Waiver; Remedies...................................... 24
-------------------
SECTION 10.03 Successors and Assigns; Assignments...................... 24
-----------------------------------
SECTION 10.04 Survival of Agreement.................................... 26
---------------------
SECTION 10.05 Expenses; Indemnification................................ 27
-------------------------
SECTION 10.06 Characterization as Transaction Document................. 28
----------------------------------------
SECTION 10.07 Notices.................................................. 28
-------
SECTION 10.08 Binding on Successors and Assigns........................ 28
---------------------------------
SECTION 10.09 Severability of Provisions............................... 28
--------------------------
SECTION 10.10 Counterparts............................................. 28
------------
SECTION 10.11 Governing Law............................................ 29
-------------
SECTION 10.12 Failure to Refinance..................................... 29
--------------------
SECTION 10.13 Tax Characterization..................................... 30
--------------------
SECTION 10.14 No Proceedings................................................ 30
--------------
SECTION 10.15 Confidentiality............................................... 30
---------------
ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS
OF POOLING AGREEMENT
............................................................................. 1
SECTION 1.01 Definitions............................................... 1
-----------
SECTION 1.02 Incorporation of Terms and Provisions of the Pooling
----------------------------------------------------
Agreement................................................. 5
---------
ARTICLE II
DESIGNATION
............................................................................. 5
SECTION 2.01 Designation............................................... 5
-----------
ARTICLE III
PAYMENTS
............................................................................. 5
SECTION 3.01 Payments.................................................. 5
--------
SECTION 3.02 Interest.................................................. 5
--------
SECTION 3.03 Principal Payments........................................ 6
------------------
SECTION 3.04 Commitment Fees; Additional Amounts; Breakage Payments.... 7
------------------------------------------------------
ARTICLE IV
PAY-OUT EVENTS
............................................................................. 7
SECTION 4.01 Pay-Out Events............................................ 7
--------------
ARTICLE V
MISCELLANEOUS
............................................................................. 8
SECTION 5.01 Governing Law............................................. 8
-------------
SECTION 5.02 Counterparts.............................................. 8
------------
SECTION 5.03 Severability of Provisions................................ 8
--------------------------
SECTION 5.04 Amendment, Waiver, Etc.................................... 8
----------------------
SECTION 5.05 The Trustee............................................... 8
-----------
SECTION 5.06 Instructions in Writing................................... 8
-----------------------
EXHIBIT
EXHIBIT A Form of Series 1994-1 Investor Revolving Certificate
This Series 1994-1 SUPPLEMENT, dated as of December 13, 1994 (this
"Supplement"), is made among AMERISOURCE RECEIVABLES CORPORATION, a Delaware
corporation, as transferor ("ARC"), AMERISOURCE CORPORATION, a Delaware
corporation ("AmeriSource"), as the initial Servicer (in that capacity, together
with any successor in that capacity, the "Servicer"), and MANUFACTURERS AND
TRADERS TRUST COMPANY, a New York banking corporation, as Trustee (in that
capacity, together with any successor in that capacity, the "Trustee").
Pursuant to the Pooling and Servicing Agreement, dated as of December 13,
1994, (as it may be amended, supplemented or otherwise modified from time to
time, and as supplemented hereby, the "Pooling Agreement"), among ARC, the
Servicer and the Trustee, ARC may from time to time direct the Trustee to issue,
on behalf of the Trust, one or more Series of Investor Revolving Certificates
representing undivided interests in the Trust. Certain terms applicable to a
Series are to be set forth in a Supplement. This Supplement is a Supplement as
such is defined in the Pooling Agreement.
Pursuant to this Supplement, ARC and the Trustee shall create a Series of
Investor Revolving Certificates and specify certain terms thereof.
ARTICLE I
DEFINITIONS; INCORPORATION OF TERMS
OF POOLING AGREEMENT
SECTION 1.01 Definitions. (a) Except as otherwise defined herein,
-----------
capitalized terms have the meanings that Appendix A to the Pooling Agreement
assigns to them, and this Supplement shall be interpreted in accordance with the
conventions set forth in Parts B, C and D of that Appendix A.
(b) Each capitalized term defined herein relates only to the Series 1994-1
Certificates and to no other Series of Certificates issued by the Trust.
Whenever used in this Supplement, the following words and phrases shall have the
following meanings:
"ABR Tranche" means, at any time, the portion of the Series 1994-1 Invested
Amount that is designated by ARC in accordance with the Revolving Certificate
Purchase Agreement to accrue interest based on the Alternate Base Rate.
"Alternate Base Rate" means, on any day, a fluctuating rate of interest per
annum equal to the higher of:
(a) the rate of interest most recently announced by the Reference
Bank at its principal office as its prime lending rate, and
page 1
(b) the Federal Funds Rate plus 50 basis points.
Any change in the interest rate resulting from a change in the prime lending
rate announced by the Reference Bank shall become effective without prior notice
to ARC or the Servicer as of 12:01 a. m., New York City time, on the Business
Day on which each change in the prime lending rate is announced by the Reference
Bank. The prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged by the Reference Bank to any
customer. The Reference Bank may make commercial loans or other loans at rates
of interest at, above or below the prime lending rate.
"Applicable Margin" means:
(a) with respect to any Eurodollar Tranche and any period set forth
below, the number of basis points set forth opposite the period:
Period Basis Points
------ ------------
Closing to the date six months after the Closing Date 50
then to the date nine months after the Closing Date 62.5
then to the date one year after the Closing Date 75
thereafter 150
(b) with respect to any ABR Tranche and any period set forth below,
the number of basis points set forth opposite the period:
Period Basis Points
------ ------------
Closing to the date one year after the Closing Date 0
thereafter 50
"Applicable Ratings Agencies" means each of the nationally recognized
statistical rating agencies that, at the request of ARC, at that time maintains
a credit rating of the Series 1994-1 Certificates.
"Base Amount" means the Base Amount as calculated pursuant to Section
4.03(b) of the Pooling Agreement; provided, however, that upon ARC's giving of
notice to the Revolving Purchasers, pursuant to Section 2.03 of the Revolving
Certificate Purchase Agreement for this Series, that each of their Stated
Amounts is to be reduced to zero due to the issuance of another Series of
Certificates (the "Take-out Certificates"), the Base Amount shall equal the
lower of (a) the Base Amount as calculated for purposes of the Series 1994-1
Certificates and (b) the Base Amount as calculated for purposes of the Take-out
Certificates that are to be issued.
page 2
"Eligible Institution" means a bank that has a long-term debt rating of at
least "A" by S&P or is otherwise approved by the Applicable Rating Agencies.
"Eurodollar Tranche" means, during any Yield Period, any portion of the
Series 1994-1 Invested Amount that has been designated by ARC in accordance with
the Revolving Certificate Purchase Agreement to accrue interest based on LIBOR.
Pursuant to the Revolving Certificate Purchase Agreement, there may be up to
four Eurodollar Tranches outstanding at any time.
"Expected Final Payment Date" means, with respect to the Series 1994-1
Certificates, the Settlement Date that is 60 months after the Closing Date.
"Federal Funds Rate" means the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for the day (or, if the day is not a
Business Day, the immediately preceding Business Day) by the Federal Reserve
Bank of New York; provided, that, if the rate is not so published for any
Business Day, the rate for purposes of this clause will be the average of the
quotations for the day on such transactions received by the Reference Bank from
three Federal funds brokers of recognized standing selected by it.
"LIBOR" means, with respect to any Yield Period, the rate per annum equal
to (a) the rate at which deposits in Dollars are offered by the Reference Bank
to first-class banks in the London interbank market at approximately 11:00 a.
m., London time, two Business Days prior to the first day of the relevant Yield
Period, such deposits being in the approximate amount of and having a Yield
Period equivalent to the Eurodollar Tranche to be funded or maintained, divided
by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to
the Yield Period. LIBOR shall be rounded, if necessary, to the next higher of
1/16 of 1%.
"Pay-Out Event" is defined in Section 4.01 of this Supplement.
------------
"Reference Bank" means the Agent under the Revolving
Certificate Purchase Agreement.
"Reserve Requirement" means the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) that is imposed
against the Reference Bank in respect of Eurocurrency liabilities, as defined in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Revolving Certificate Purchase Agreement" means the Revolving Certificate
Purchase Agreement dated as of the date hereof among ARC, AmeriSource, the
Revolving Purchasers named therein and Bankers Trust Company, as Agent and
Revolving Purchaser, as it may be amended, supplemented or otherwise modified
from time to time.
page 3
"Sale Date" means, with respect to the Series 1994-1 Certificates, the
Settlement Date that is 70 months after the Closing Date.
"Scheduled Final Payment Date" means the Sale Date.
"Scheduled Pay-Out Commencement Date" means the first day of the October,
1999 Calculation Period.
"Series 1994-1 Certificate" means any Certificate issued pursuant to this
Supplement and the Revolving Certificate Purchase Agreement, substantially in
the form of Exhibit A to this Supplement.
---------
"Series 1994-1 Initial Invested Amount" means $0.
"Series 1994-1 Invested Amount" means, at any time, an amount equal to (a)
the sum of (i) the Series 1994-1 Initial Invested Amount, plus (ii) all
additions made to the Series 1994-1 Invested Amount pursuant to Section 4.03 of
the Pooling Agreement plus (iii) all additions to the principal amount of Series
1994-1 Certificates made pursuant to Section 6.11 of the Pooling Agreement,
minus (b) the sum of (i) all reductions in the Series 1994-1 Invested Amount
made pursuant to Section 4.03 of the Pooling Agreement, (ii) the aggregate
amount of all other principal payments made to the Holders of the Series prior
to that time in respect of the Series, (iii) the aggregate amount of all funds
on deposit in the Principal Funding Account and the Defeasance Account with
respect to the Series and (iv) any Investor Allocable Charged-Off Amounts (net
of Investor Net Recoveries) allocated to the Series.
"Series 1994-1 Investor Revolving Certificate Rate" means, at any time, the
weighted average of the interest rates on all outstanding Tranches.
"Tranche" means each of the ABR Tranche and each Eurodollar Tranche.
"Yield Period" means, with respect to the Series 1994-1 Certificates:
(a) as to the ABR Tranche (if any) from time to time, each period
from one Settlement Date to the next Settlement Date (except that the
initial Yield Period shall commence on the Closing Date), and
(b) as to each Eurodollar Tranche (if any) from time to time, each
period from the date upon which it was first designated as such pursuant to
the Revolving Certificate Purchase Agreement (or the end of the next
preceding Yield Period for such Eurodollar Tranche, if there has been one)
to the corresponding date in the next calendar month; provided, that (i) if
there is no corresponding date, the Yield Period will end on the last day
of the next calendar month and (ii) if any Yield Period for a Eurodollar
Tranche would otherwise end on a day that is not a Business Day, such
page 4
Eurodollar Tranche shall instead end on the next Business Day (or, if the
next Business Day falls in the next calendar month, then the Yield Period
shall end on the next preceding Business Day).
SECTION 1.02 Incorporation of Terms and Provisions of the Pooling
----------------------------------------------------
Agreement. This Supplement hereby incorporates by reference the terms and
- - - ---------
provisions of the Pooling Agreement as if they were set forth in full herein.
As supplemented by this Supplement, the Pooling Agreement is hereby in all
respects ratified and confirmed and both together shall be read, taken and
construed as one and the same agreement. In the event of any conflict or
inconsistency between the terms of this Supplement and the terms of the Pooling
Agreement as the terms apply to any of the Series 1994-1 Certificates, the terms
of this Supplement shall control.
ARTICLE II
DESIGNATION
SECTION 2.01 Designation. There is hereby created a Series of Investor
-----------
Revolving Certificates to be issued pursuant to the Pooling Agreement and this
Supplement to be known as "Series 1994-1 Certificates." Subject to the
conditions set forth in the Revolving Certificate Purchase Agreement, the
Trustee shall authenticate and deliver the Series 1994-1 Certificates, to or
upon the order of ARC, in an aggregate stated amount equal to $230,000,000. The
Series 1994-1 Certificates shall be authenticated and delivered in the manner
and at the times for authentication and delivery of Investor Revolving
Certificates that are specified in Article VI of the Pooling Agreement. The
Series 1994-1 Certificates are a Senior Class.
ARTICLE III
PAYMENTS
SECTION 3.01 Payments. Except as expressly provided otherwise in this
--------
Supplement, interest and principal shall be distributed in respect of the Series
1994-1 Certificates at the times described in, and in the amounts calculated
pursuant to, Articles IV and V of the Pooling Agreement for payments that are to
be made with respect to Investor Revolving Certificates.
SECTION 3.02 Interest. (a) ARC shall have the right from time to time to
--------
allocate the outstanding principal amount under the 1994-1 Certificates to
multiple Tranches: up to four Eurodollar Tranches and an ABR Tranche. Interest
on the ABR Tranche shall be payable on each Settlement Date, and interest on a
Eurodollar Tranche shall be payable at the
page 5
end of the applicable Yield Period, except that interest on the amount of any
principal repaid on any other date shall be payable on the date of the
repayment.
(b) Interest on a Eurodollar Tranche shall accrue during any Yield Period
at a rate per annum equal to the Applicable Margin plus the applicable LIBOR and
shall be calculated on the basis of actual days over a year of 360 days.
(c) Interest on the ABR Tranche shall accrue (i) during the period from
the Closing Date to (and including) the 75th day following the Closing Date, at
125 basis points over the Federal Funds Rate in effect from time to time, and
(ii) thereafter at the Applicable Margin plus the Alternate Base Rate in effect
from time to time. The interest shall be calculated on the basis of actual days
over a year of 365 or 366 days, as the case may be.
(d) Interest with respect to the Series 1994-1 Certificates due but not
paid on any Settlement Date or the last day of a Yield Period, as the case may
be, will be due on the next Settlement Date or last day of the next Yield Period
with additional interest on the amount at 2% above the applicable Certificate
Rate to the extent permitted by law.
SECTION 3.03 Principal Payments. (a) Prior to the earlier of the
------------------
Liquidation Commencement Date and the Pay-Out Period Commencement Date, the
outstanding principal amount of the 1994-1 Certificates shall vary from time to
time as positive Variable Amounts and other amounts are allocated (in whole or
in part) to increase the Series 1994-1 Invested Amount and as Collections are
allocated to repay (in whole or in part) the Series 1994-1 Invested Amount. In
any event, the principal amount of any Series 1994-1 Certificate outstanding at
any time shall not exceed its Stated Amount.
(b) After the commencement of the Liquidation Period or the Pay-Out Period
with respect to Series 1994-1 Certificates, no further increases in the Investor
Revolving Invested Amount of the Series 1994-1 Certificates shall be made. On
each Business Day during the Pay-Out Period for Series 1994-1 Certificates
(until the Series 1994-1 Invested Amount has been provided for in full), the
Servicer shall allocate a portion of the Collections available in the Master
Collection Account, after making any required transfers to the Carrying Cost
Account, to the Series 1994-1 Invested Amount and transfer the portion to the
Defeasance Account. The portion of Collections so allocated and transferred
shall equal (i) the Defeasance Allocation Percentage for the Series 1994-1
Certificates multiplied by (ii) the amount of the available Collections. The
amounts so allocated to the Defeasance Account during each Calculation Period
shall be paid to the Holders of the Series 1994-1 Certificates in reduction of
the Series 1994-1 Invested Amount on the next Settlement Date or on an earlier
date that ARC may elect; provided, however, that if the Liquidation Period
commences at a time when any such amounts are being held in the Defeasance
Account, the amounts being so held shall be reallocated to the Master Collection
Account for application along with the other amounts held therein.
page 6
(c) If the Liquidation Period commences at any time when the Series 1994-1
Invested Amount is greater than zero, the Series 1994-1 Certificates shall
thereafter be entitled to receive, on each Settlement Date occurring after the
Calculation Period in which the Liquidation Period commences (and until the
principal outstanding under the 1994-1 Certificates has been paid in full) funds
in an amount equal to the Principal Distribution Amount with respect to the
Series 1994-1 Certificates.
SECTION 3.04 Commitment Fees; Additional Amounts; Breakage Payments. (a)
------------------------------------------------------
Non-Usage Fees and other fees payable by ARC to the Revolving Purchasers and the
Agent under the Revolving Certificate Purchase Agreement and one or more fee
letters executed by ARC shall be payable from funds available for allocation
under clause Seventh of Section 4.03(g) of the Pooling Agreement or clause Third
of Section 4.03(h) of the Pooling Agreement, as applicable.
(b) Additional amounts and breakage payments on account of increased costs
relating to eurodollar funding, capital costs, breakage of a Eurodollar Tranche,
changes in tax laws and certain indemnity obligations payable under the
Revolving Certificate Purchase Agreement shall be payable from funds available
for allocation under clause Seventh of Section 4.03(g) or clause Third of
Section 4.03(h) of the Pooling Agreement, as applicable.
(c) The rating of the Series 1994-1 Certificates will not address the
likelihood of payment of any such fees, additional amounts or breakage payments.
ARTICLE IV
PAY-OUT EVENTS
SECTION 4.01 Pay-Out Events. Any of the following shall be a "Pay-Out
--------------
Event" with respect to the Series 1994-1 Certificates:
(a) The Majority Investors do not declare a Liquidation Commencement
Date with respect to a Liquidation Event described in clause (a), (b) or
(f) of Section 9.01 of the Pooling Agreement, and Holders of Investor
Certificates representing more than 50% of the Series 1994-1 Invested
Amount declare that a Pay-Out Event has occurred.
(b) The Series 1994-1 Certificates shall cease to be rated "A" or
better by S&P and such condition shall continue for a period of 90 days;
provided, that during such period ARC, AmeriSource and the Holders of the
Certificates shall cooperate in good faith to make such changes to the
Program and the Certificates that may be required to restore the rating;
and provided further that no such party shall be required to consent to any
amendment to a
page 7
Transaction Document that it determines in its sole and reasonable
discretion to be materially adverse to its own interests.
(c) The Scheduled Pay-Out Commencement Date shall occur.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.
SECTION 5.02 Counterparts. This Supplement may be executed in any number
------------
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 5.03 Severability of Provisions. If any one or more of the
--------------------------
provisions or terms of this Supplement shall for any reason whatsoever be held
invalid, then the unenforceable provision(s) or term(s) shall be deemed
severable from the remaining provisions or terms of this Supplement and shall in
no way affect the validity or enforceability of the other provisions or terms of
this Supplement.
SECTION 5.04 Amendment, Waiver, Etc. The provisions of this Supplement
-----------------------
may be amended, modified or waived from time to time by the Servicer, ARC and
the Trustee with the consent of the Required Series Holders of the Series 1994-1
Certificates to the extent permitted by Section 13.01 of the Pooling Agreement,
and the terms of that section shall apply to any such amendment, modification or
waiver.
SECTION 5.05 The Trustee. The Trustee shall not be responsible in any
-----------
manner whatsoever for or in respect of the validity or sufficiency of this
Supplement or for or in respect of the recitals contained herein, all of which
recitals are made solely by ARC and the Servicer.
SECTION 5.06 Instructions in Writing. All instructions given by the
-----------------------
Servicer to the Trustee pursuant to this Supplement shall be in writing, and may
be included in a Daily Report or Settlement Statement.
page 8
IN WITNESS WHEREOF, ARC, the Servicer and the Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
AMERISOURCE RECEIVABLES CORPORATION,
as transferor
By: ______________________________________
Title: __________________________________
Address: P.O. Box 1735
Southeastern, Pennsylvania 19399-1735
Attention: Kurt Hilzinger
Telephone: (610) 296-4480
Facsimile: (610) 993-9085
AMERISOURCE CORPORATION,
as initial Servicer
By: _____________________________________
Title: _________________________________
Address: 300 Chester Field Parkway
Malvern, Pennsylvania 19355
Attention: Kurt Hilzinger
Telephone: (610) 296-4480
Facsimile: (610) 993-9085
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:______________________________________
Title: Assistant Vice President
Address: One M&T Plaza - 7th Floor
Buffalo, New York 14203
Attention: Russell Whitley
Telephone: (716) 842-5602
Facsimile: (716) 842-4474
page 9
STATE OF ___________ )
)
COUNTY OF __________ )
On the _____ day of December, 1994 before me personally came ____________,
who being by me duly sworn, did depose and say that he resides at
__________________, that he is the ______________ of AmeriSource Receivables
Corporation, a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that he signed his name thereto by order
of the board of directors of the corporation.
Given under my hand and notarial seal, this _____ day of December, 1994.
______________________________
Notary Public
Type or
Print Name:___________________
My commission expires:
__________________
page 10
STATE OF ___________ )
)
COUNTY OF __________ )
On the _____ day of December, 1994 before me personally came ____________,
who being by me duly sworn, did depose and say that he resides at
__________________, that he is the ______________ of AmeriSource Corporation, a
Delaware corporation, the corporation described in and that executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of the corporation.
Given under my hand and notarial seal, this _____ day of December, 1994.
_______________________________
Notary Public
Type or
Print Name:____________________
My commission expires:
_________________
page 11
STATE OF ___________ )
)
COUNTY OF __________ )
On the _____ day of December, 1994 before me personally came ____________,
who being by me duly sworn, did depose and say that he resides at
__________________, that he is the ______________ of Manufacturers and Traders
Trust Company, a New York banking corporation, the corporation described in and
that executed the foregoing instrument; and that he signed his name thereto by
order of the board of directors of the corporation.
Given under my hand and notarial seal, this _____ day of December, 1994.
_______________________________
Notary Public
Type or
Print Name:____________________
My commission expires:
_________________
page 12
EXHIBIT A
to the Series 1994-1 Supplement
FORM OF SERIES 1994-1 INVESTOR REVOLVING CERTIFICATE
----------------------------------------------------
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE
SKY LAWS OF ANY STATE OF THE UNITED STATES OF AMERICA. THE CERTIFICATEHOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE CERTIFICATEHOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, AND WHOM THE
CERTIFICATEHOLDER HAS INFORMED, IN EACH CASE, THAT THE OFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN A TRANSACTION
COMPLYING WITH THE PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT OR (3)
PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND THE
TRUSTEE AND ARC RECEIVES WRITTEN REPRESENTATIONS OF THE TRANSFEROR AND
TRANSFEREE SATISFACTORY TO THE TRUSTEE AND ARC REGARDING THE DISPOSITIONS, AND,
IF THE TRUSTEE OR ARC SO REQUIRES, AN OPINION OF COUNSEL OF THE TRANSFEROR
SATISFACTORY TO THE TRUSTEE AND ARC WITH RESPECT TO THE AVAILABILITY OF SUCH
EXEMPTION PRIOR TO THE RESALE OR TRANSFER. WITH RESPECT TO CLAUSES (1), (2) AND
----------- ---
(3), SUBJECT TO THE RECEIPT BY THE TRUSTEE OF OTHER EVIDENCE ACCEPTABLE TO THE
- - - ---
TRUSTEE THAT THE OFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES OF AMERICA OR OTHER APPLICABLE
JURISDICTION AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES
OF AMERICA. THE CERTIFICATEHOLDER OF THIS CERTIFICATE AGREES THAT IT WILL, AND
EACH SUBSEQUENT CERTIFICATEHOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
CERTIFICATE OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.
page 1
AMERISOURCE RECEIVABLES MASTER TRUST
SERIES 1994-1 INVESTOR REVOLVING CERTIFICATE
Initial Stated Amount: $230,000,000
Percentage Interest evidenced
by this Certificate: 100%
Initial Cut-Off Date: December 12, 1994
First Distribution Date: Settlement Date relating to November 1994 Cut-Off Date
THIS CERTIFIES THAT Bankers Trust Company is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in the AmeriSource
Receivables Master Trust (the "Trust") that was created pursuant to (a) the
Pooling and Servicing Agreement, dated as of December 13, 1994 (as the same may
be amended, supplemented, amended and restated or otherwise modified from time
to time, the "Pooling Agreement"), among AmeriSource Receivables Corporation, a
Delaware corporation, as transferor ("ARC"), AmeriSource Corporation, a Delaware
corporation, as initial Servicer (in such capacity, the "Servicer"), and
Manufacturers and Traders Trust Company, a New York banking corporation, as
trustee (together with its successors and assigns in such capacity, the
"Trustee") and (b) the Supplement dated as of December 13 relating to the Series
1994-1 Investor Revolving Certificates (the "Supplement"). This Certificate is
one of the duly authorized Series 1994-1 Investor Revolving Certificates
designated and issued under the Pooling Agreement and the Supplement. Except as
otherwise defined herein, capitalized terms have the meanings that the
Supplement or Appendix A to the Pooling Agreement assigns to them. This
Certificate is subject to the terms, provisions and conditions of, and is
entitled to the benefits afforded by, the Pooling Agreement, to which terms,
provisions and conditions the Holder of this Certificate by virtue of the
acceptance hereof assents and by which the Holder is bound. The Series 1994-1
Investor Revolving Certificates are a Senior Class.
This Certificate evidences the amount of Purchases (as defined in the
Revolving Certificate Purchase Agreement) made by the Holder hereof that are
from time to time outstanding. The Holder hereof shall and is hereby authorized
to record on the grid attached to this Certificate (or at such Holder's option,
in its internal books and records) the date and amount of each Purchase made by
it, the portion of its outstanding Purchases that are from time to time
allocated to the ABR Tranche and any Eurodollar Tranche, the amount of each
repayment of the principal amount represented by this Certificate and any
reductions to the Stated Amount of this Certificate made pursuant to Section
2.03 of the Revolving Certificate Purchase Agreement; provided, however, that
failure to make any such recordation on the grid or records or any error in the
grid or records shall not adversely affect the Holder's rights with respect to
its interest in the assets of the Trust and its right to receive Investor
page 2
Revolving Yield in respect of the outstanding principal amount of all Purchases
made by the Revolving Purchasers.
Investor Revolving Yield shall accrue on this Certificate as set forth in
the Pooling Agreement, the Revolving Certificate Purchase Agreement and the
Supplement. This Certificate is subject to prepayment prior to the maturity
hereof to the extent set forth in the Pooling Agreement and the Supplement.
The Pooling Agreement, the Revolving Certificate Purchase Agreement and the
Supplement may be amended and the rights and obligations of the parties thereto
and of the Holder of this Certificate modified as set forth in the Pooling
Agreement, the Revolving Certificate Purchase Agreement and the Supplement.
Unless the certificate of authentication hereon shall have been executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, this Certificate shall not entitle the Holder hereof to any benefit
under the Transaction Documents or be valid for any purpose.
This Certificate does not represent a recourse obligation of, or an
interest in, ARC, any Seller, the Servicer, the Trustee or any Affiliate of any
of them. This Certificate is limited in right of payment to the Trust Assets.
As provided in the Pooling Agreement, and subject to the restrictions on
sale, transfer and disposition set forth in the Transaction Documents, upon
surrender for registration of transfer of this Certificate at any office or
agency of the Transfer Agent and Registrar maintained for that purpose, ARC
shall execute and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and Series that is/are in authorized denominations of like aggregate
fractional interests in the assets of the Trust of the Series 1994-1 Investor
Revolving Certificates, and that bear(s) a number that is not contemporaneously
outstanding.
As provided in the Pooling Agreement, and subject to the restrictions on
exchange set forth in the Transaction Documents, at the option of the Holder,
this Certificate may be exchanged for other Certificates of the same Class and
Series of authorized denominations of like aggregate fractional interests in the
Revolving Certificate Interest of the Series 1994-1 Investor Revolving
Certificates and bearing numbers that are not contemporaneously outstanding,
upon surrender of this Certificate to be exchanged at any such office or agency.
If this Certificate is so surrendered for exchange, ARC shall execute, and the
Trustee shall authenticate and deliver, the appropriate number of Certificates
of the same Class and Series.
If this Certificate is presented or surrendered for registration of
transfer or exchange, it shall be accompanied by a written instrument of
transfer in a form satisfactory to the
page 3
Trustee and the Transfer Agent and Registrar duly executed by the Holder hereof
or his attorney-in-fact duly authorized in a writing delivered to the Transfer
Agent and Registrar.
By its acceptance of this Certificate, each Holder hereof (a) acknowledges
that it is the intent of ARC, and agrees that it is the intent of the Holder
that, for Federal, state and local income and franchise tax purposes only, the
Investor Certificates (including this Certificate) will be treated as evidence
of indebtedness secured by the Trust Assets and the Trust not be characterized
as an association taxable as a corporation, (b) agrees to treat this Certificate
for Federal, state and local income and franchise tax purposes as indebtedness
and (c) agrees that the provisions of the Transaction Documents shall be
construed to further these intentions of the parties.
This Certificate shall be construed in accordance with the laws of the
State of New York, without regard to its conflict of laws principles, and all
obligations, rights and remedies under or arising in connection with this
Certificate shall be determined in accordance with the laws of the State of New
York.
IN WITNESS WHEREOF, ARC has caused this Certificate to be executed by its
officer thereunto duly authorized.
AMERISOURCE RECEIVABLES CORPORATION
By: _______________________________
Title: ___________________________
page 4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1994-1 Investor Revolving Certificates referred
to in the Pooling Agreement.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By: ___________________________________
Title: _______________________________
Dated: ______________, ____
page 5
PURCHASES AND REPAYMENTS
Principal
Amount of Outstanding
Purchase Principal
Amount Purchased Repaid Balance Stated Amount
- - - ------------------ ----------------- ------------------ --------------------
Yield
Base Eurodollar Period (if Base Eurodollar Base Eurodollar
Rate Rate applicable) Rate Rate Rate Rate Reduction Net
- - - ----------------------------------------------------------------------------------------------------
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
____________________________________________________________________________________________________
page 6
EXHIBIT D
to Revolving Certificate Purchase
Agreement Series 1994-1
FORM OF ASSIGNMENT AGREEMENT
----------------------------
This ASSIGNMENT AGREEMENT, dated as of ____________ (this "Agreement"), is
made between ____________________ (the "Assignor"), and _____________________
(the "Assignee"). Except as otherwise defined herein, capitalized terms have
the meanings assigned to them in the Revolving Certificate Purchase Agreement
(as defined below).
BACKGROUND
1. The Assignor is a party to the Revolving Certificate Purchase
Agreement, dated as of December 13, 1994 (as amended, supplemented or otherwise
modified from time time, the "Revolving Certificate Purchase Agreement"), among
AmeriSource Receivables Corporation, a Delaware corporation ("ARC"), AmeriSource
Corporation, a Delaware corporation, the Revolving Purchasers party thereto
(including the Assignor), and Bankers Trust Company, as the Agent and Revolving
Purchaser.
2. The Assignor wishes to assign, and the Assignee wishes to be so
assigned, the Assignor's rights and obligations arising on and after the
Effective Date (as defined below) under the Revolving Certificate Purchase
Agreement and its Certificate, including (a) its obligations to make Purchases
(its "Credit Exposure") and (b) its outstanding Purchases (the "Purchases").
3. The Assignor and the Assignee also wish (a) the Assignee to assume the
obligations of the Assignor under the Revolving Certificate Purchase Agreement
with respect to the Assignee's Share (as defined below) to the extent of the
rights assigned and (b) the Assignor to be released from the obligations assumed
by Assignee.
4. ARC, by its execution hereof, is providing its written consent to the
assignment accomplished by this Agreement.
SECTION 1. Assignment. Effective on the Effective Date (as defined below)
----------
and upon payment of the amount specified in Section 3(a), the Assignor hereby
------------
assigns and transfers to the Assignee, without recourse, representation or
warranty of any kind, express or implied (except as provided in Sections 6(a)
-------------
and (b)), and subject to Section 4(b), the Assignee's Share (as specified in
--- ------------
Annex I hereto) (the "Assignee's Share") of all of the
- - - -------
page 1
Assignor's rights, title and interest arising under (a) the Revolving
Certificate Purchase Agreement relating to the Assignor's Credit Exposure
including all rights and obligations with respect to the Purchases attributable
to the Assignee's Share and (b) the Assignor's Certificate with respect to the
Assignee's Share as will result in the Assignee having from and after the
Effective Date the Percentage ("Assignee's Percentage") specified in Annex I.
-------
The Stated Amount associated with Assignee's Share is also specified in Annex I.
-------
SECTION 2. Assumption. Effective on the Effective Date, the Assignee
----------
hereby irrevocably purchases, assumes and takes from the Assignor, and the
Assignor is hereby expressly and absolutely released from, all of the Assignor's
obligations arising under the Revolving Certificate Purchase Agreement relating
to the Assignee's Share and of any outstanding Purchases attributable to the
Assignee's Share.
SECTION 3. Payment. In consideration of the assignment by the Assignor to
-------
the Assignee as set forth above, the Assignee agrees to pay to the Assignor, in
Dollars and in immediately available funds, (a) on or prior to the Effective
Date, an amount specified by the Assignor in writing on or prior to the
Effective Date that represents the Assignee's Share attributable to the
principal amount of the Purchases made pursuant to the Revolving Certificate
Purchase Agreement and outstanding on the Effective Date, and (b) from time to
time thereafter, other amounts (if any) that the Assignee has agreed in writing
to pay to the Assignor after the Effective Date. In consideration of the
assumption by the Assignee, the Assignor agrees to pay to the Assignee within
two Business Days of the Effective Date, an assignment fee (if any) that
previously has been agreed to in writing by both parties.
Notwithstanding anything to the contrary in this Agreement, if and when the
Assignee receives or collects (x) any payment of principal or Investor Revolving
Yield relating to any Purchases or (y) any payment of fees that are required to
be paid to the Assignor pursuant to this Agreement, then the Assignee shall
forward the payment to the Assignor.
To the extent payment of funds to the Assignee or the Assignor are not made
within two Business Days, each, as the case may be, shall be entitled to recover
the due amount, together with interest thereon at the Federal Funds Rate per
annum accruing from the date of payment or the date of receipt of the funds by
the other party.
SECTION 4. Effectiveness. (a)(i) This Agreement shall become effective
-------------
on the date (the "Effective Date") on which it shall have been duly executed by
all parties and the Agent shall have recorded the information contained herein
in its records (or automatically if not so recorded within five Business Days
from the Agent's receipt of this Agreement signed by the Assignor, the Assignee
and ARC). The Assignor hereby notifies the Agent of the assignment, effective
as of the Effective Date, of the Assignee's Share and any Purchases attributable
to the Assignee's Share, and directs the Agent to pay the Assignee (A) any
payment of principal of, or Investor Revolving Yield on, any Purchase
attributable to the Assignee's Share of any Purchases and (B) any Non-Usage Fees
attributable to the
page 2
Assignee's Share of the Credit Exposure. No (x) failure of either the Assignee
or the Assignor to settle any amount owed to the other (except with respect to
the payment of the processing and recordation fee to the Agent and the payment
due under Section 3(a)), (y) dispute respecting any other settlement, including
------------
in respect of ARC, or (z) bankruptcy, insolvency or other condition whatsoever
respecting any Person, shall in any way impair, reduce or otherwise affect the
effectiveness of this Agreement.
(ii) The Assignor, the Assignee and the Agent each acknowledges and
agrees that from and after the Effective Date, the Agent shall make all
payments under the Revolving Certificate Purchase Agreement in respect of
the Assignee's Share (including all payments of principal, Investor
Revolving Yield and Non-Usage Fees with respect thereto, whether or not the
payments shall have accrued prior to or after the Effective Date) to the
Assignee only. The Assignor and the Assignee hereby agree further to make
all appropriate adjustments in payments to either of them under the
Revolving Certificate Purchase Agreement for periods prior to the Effective
Date directly between themselves.
(b) With respect to any Purchase attributable to the Assignee's Share, if
and when the Assignor receives or collects any payment of principal, Investor
Revolving Yield, Non-Usage Fees or other fees with respect to the Assignee's
Share for any period commencing on or after the Effective Date, the Assignor
shall distribute to the Assignee the portion attributable to the Assignee's
Share, but only to the extent it accrued on or after the Effective Date and was
not theretofore paid to the Assignee by ARC or otherwise. Any principal,
Investor Revolving Yield and Non-Usage Fees paid prior to the Effective Date
shall be retained by the Assignor. Any principal, Investor Revolving Yield or
Non-Usage Fees received by the Assignee that accrued prior to the Effective Date
shall be forwarded promptly, in the form received, to the Assignor. The
Assignee recognizes and agrees that (i) it shall receive no payment on account
of any Agent's fees or other amounts or expenses (including counsel fees)
payable to the Agent (in such capacities and for its own account), (ii) this
Agreement shall not operate to assign any rights or delegate any obligations of
the Agent (in such capacities), and (iii) notwithstanding anything to the
contrary in this Agreement, the Assignor shall retain all of its rights to
indemnification under the Revolving Certificate Purchase Agreement for any
events, acts or omissions occurring prior to the Effective Date.
(c) The Agent, by its execution hereof, acknowledges the assignment and
agrees to make payments in respect of Investor Revolving Yield, reimbursements
and fees as described in clause (a).
----------
SECTION 5. Rights as Revolving Purchaser under Revolving Certificate
---------------------------------------------------------
Purchase Agreement. In accordance with Section 10.03 of the Revolving
- - - ------------------
Certificate Purchase Agreement, (a) as of the Effective Date, the Assignee will
be a Revolving Purchaser under, and party to, the Revolving Certificate Purchase
Agreement and shall have (i) all of the rights and obligations of a Revolving
Purchaser (to the extent of the assignment and
page 3
assumption of the Assignee's Share effected by this Agreement) and (ii) the
addresses for (A) notice purposes and (B) LIBOR Office as set forth in items 2
and 3, respectively, of Annex I hereto and (b) promptly on or after the
-------
Effective Date, ARC will execute and deliver any documents and instruments that
the Assignor or the Assignee reasonably may require.
SECTION 6. Representations and Warranties. (a) Each of the Assignor and
------------------------------
the Assignee represents and warrants to the other as follows:
(i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement, to fulfill the
obligations hereunder and to consummate the transactions contemplated
hereby,
(ii) the making and performance of this Agreement and all documents
required to be executed and delivered hereunder do not and will not violate
any law or regulation of the jurisdiction of its incorporation or any other
applicable law or regulation,
(iii) this Agreement has been duly executed and delivered and
constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms, and
(iv) all approvals, authorizations or other actions by, or filing
with, any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been obtained.
(b) The Assignor represents and warrants to the Assignee that the
Assignee's Share and the Purchases attributable to the Assignee's Share are not
subject to any liens or security interests created by the Assignor.
(c) Except as set forth in subsections (a) and (b), the Assignor makes no
--------------- ---
representations or warranties, express or implied, to the Assignee and shall not
be responsible to the Assignee for (i) the execution, effectiveness,
genuineness, legality, validity, enforceability, collectibility, regulatory
status or sufficiency of the Revolving Certificate Purchase Agreement or any of
the other Transaction Documents, (ii) the perfection, priority, value or
adequacy of any collateral security or guaranty, (iii) the taking of any action,
or the failure to take any action, with respect to any of the Transaction
Documents, (iv) any representations, warranties, recitals or statements made in
any of the Transaction Documents or in any written or oral financial or other
statements, instruments, reports, certificates or documents made or furnished by
the Assignor to the Assignee or by or on behalf of ARC or any of its Affiliates
to the Assignor or the Assignee in connection with the Transaction Documents and
the transactions contemplated thereby, (v) the financial or other condition of
ARC or any other Person or (vi) any other matter having any relation to any of
the foregoing. The Assignor shall not be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or
page 4
agreements contained in any of the Transaction Documents or the existence or
possible existence of any Unmatured Liquidation Event, Liquidation Event or
Servicer Default. Additionally, the Assignor shall not have any duty or
responsibility either initially or on a continuing basis to make any
investigation or any appraisal on the Assignee's behalf or to provide the
Assignee with any credit or other information with respect thereto, whether
coming into the Assignor's possession before the execution of the Revolving
Certificate Purchase Agreement or at any time thereafter. The Assignor shall
have no responsibility with respect to the accuracy of, or the completeness of,
any information provided to the Assignee, whether by the Assignor or by or on
behalf of ARC or any other Person obligated under the Revolving Certificate
Purchase Agreement or any related instrument or document.
(d) The Assignee represents and warrants that it has made its own
independent investigation of each of the foregoing matters, including the
financial condition and affairs of ARC and its Affiliates, in connection with
the making of the Purchases and the execution of this Agreement (including the
solvency of ARC and its Affiliates, their ability to pay their respective debts
as they mature and the capital of ARC and its Affiliates remaining after the
closing under the Transaction Documents and the consummation of the transactions
contemplated thereby) and has made and shall continue to make its own appraisal
of the creditworthiness of ARC and its Affiliates. The Assignee (i) confirms
that it has received copies of the Transaction Documents together with copies of
certain other closing documents delivered in connection with the Revolving
Certificate Purchase Agreement, financial statements and any other documents and
information that it has requested or deemed appropriate to make its own credit
analysis and decision to enter into this Agreement and (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Revolving Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Transaction Documents.
SECTION 7. No Proceedings and Confidentiality. The Assignee hereby agrees
----------------------------------
to be bound by the provisions of Sections 10.14 and 10.15 of the Revolving
Certificate Purchase Agreement.
SECTION 8. [Withholding Taxes. In accordance with Section 4.06 of the
-----------------
Revolving Certificate Purchase Agreement, the Assignee agrees to execute and
deliver to the Agent, for delivery to ARC, on or before the Effective Date, and
thereafter before January 15th of each year, (a) an Internal Revenue Service
Form 1001 or 4224 or successor applicable form, properly completed and duly
executed by the Revolving Purchaser certifying that it is entitled to receive
payments under the Revolving Certificate Purchase Agreement without deduction or
withholding of any United States Federal income taxes, and (b) an original copy
of Internal Revenue Service Form W-8 or W-9 or applicable successor form,
properly completed and duly executed. The Assignee represents and warrants to
ARC and the Assignor that, as of the Effective Date, it shall be entitled to
receive payments of principal and Investor Revolving Yield hereunder without
deduction for or on account of any taxes
page 5
imposed by the United States of America or any political subdivision thereof.
In the event that, after delivering the applicable form, the Assignee shall
cease to be exempt from withholding and/or deduction of taxes, then the Agent
may withhold and/or deduct the applicable amount from any payments of principal,
Investor Revolving Yield and any fees to which the Assignee otherwise would be
entitled, and the Agent shall have no liability whatsoever to the Assignee for
any such withholding or deduction. The Assignee shall indemnify ARC and the
Agent from and against all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs or expenses that result from the Assignee's
breach of such representation and warranty./*/
SECTION 9. ]Miscellaneous. (a) Each of the parties hereto agrees to take
-------------
any action and execute and deliver any documents that any party hereto
reasonably may request from time to time in order to implement more fully the
purposes of this Agreement. Without limiting the generality of the foregoing,
the Assignor and the Assignee will cooperate in obtaining for the Assignee a
Certificate (as well as a replacement Certificate for the Assignor representing
any retained interest of the Assignor).
(b) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(c) Except as otherwise set forth herein, this Agreement sets forth the
entire agreement between the parties relating to the subject matter hereof, and
no term or provision of this Agreement may be amended, changed, waived,
discharged or terminated orally or otherwise, except in a writing signed by the
Assignor and the Assignee.
(d) This Agreement may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
(e) Each of the parties hereto agrees that each party shall bear its own
expenses in connection with the preparation and execution of this Agreement and
the consummation of the Assignment described herein. The Assignee further
agrees that it shall send a check in the amount of $3,000 to the Agent on or
prior to the Effective Date, as payment of the processing and recordation fee
described in Section 10.3(c) of the Revolving Certificate Purchase Agreement.
(f) All representations and warranties made, and indemnities provided for,
herein shall survive the consummation of the transactions contemplated hereby.
____________________________
/*/ If the Assignee is a foreign entity.
page 6
(g) The Assignor may at any time or from time to time grant assignments
and participations in its rights and obligations under the Revolving Certificate
Purchase Agreement and its Certificate to other Persons, but not in the portions
thereof assigned to the Assignee.
(h) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Neither the
Assignor nor the Assignee may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the other
party. The preceding sentence shall not limit the right of the Assignee to
assign all or part of the Assignee's Share in the manner contemplated by the
Revolving Certificate Purchase Agreement.
(i) The Assignee acknowledges that all obligations of the Agent are
subject to Article IX of the Revolving Certificate Purchase Agreement.
page 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers and delivered as of the day and
year first above written.
_____________________________,
as Assignor
By: _________________________
Title: _____________________
_____________________________,
as Assignee
By: _________________________
Title: _____________________
The undersigned hereby acknowledges the terms and provisions of this
Agreement, and agrees to make payments in respect of principal, Investor
Revolving Yield and fees as described in Section 4(a).
------------
BANKERS TRUST COMPANY,
as the Agent
By: _______________________
Title: ___________________
page 8
ANNEX I
to the Assignment Agreement
ITEM 1. ASSIGNEE'S SHARE:
(a) Assignee's Stated Amount $______________
(b) Assignee's Percentage ______________%
ITEM 2. ADDRESS OF ASSIGNEE FOR NOTICE PURPOSES:
__________________________________
__________________________________
__________________________________
Attention: _______________________
Telephone: _______________________
Facsimile: _______________________
ITEM 3. LIBOR OFFICE OF ASSIGNEE:
__________________________________
__________________________________
__________________________________
page 9
|| APPENDIX X
to Revolving Certificate Purchase
Agreement Series 1994-1
INDEX OF ADDITIONAL DEFINED TERMS
---------------------------------
Agent..........................................................................1
Agreement......................................................................1
AmeriSource....................................................................1
ARC............................................................................1
Assignees.....................................................................25
Certificates...................................................................1
Confidential Information......................................................30
Credit Exposure...............................................................24
Financial Advisors............................................................14
Indemnitees...................................................................27
LIBOR Office...................................................................8
Non-Usage Fee..................................................................7
Participants..................................................................24
Percentage.....................................................................2
Pooling Agreement..............................................................1
Purchase.......................................................................2
Receivables Review............................................................20
Representative................................................................31
Required Revolving Purchasers.................................................19
Revolving Purchasers...........................................................1
Securities Act................................................................13
Servicer.......................................................................1
Specified Basis Points.........................................................7
Stated Amount..................................................................4
Supplement.....................................................................1
Taxes.........................................................................11
Transferee....................................................................26
Trust..........................................................................1
Trust Interest.................................................................1
Trustee........................................................................1
page 10
||