Exhibit 10.3





PORTIONS
OF CERTAIN EXHIBITS TO THIS AGREEMENT HAVE BEEN OMITTED AND WILL BE
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A CONFIDENTIAL TREATMENT REQUEST



EXHIBIT 10.3




RECEIVABLES PURCHASE AGREEMENT




DATED AS OF JULY 10, 2003




AMONG




AMERISOURCE RECEIVABLES FINANCIAL CORPORATION, AS SELLER,




AMERISOURCEBERGEN DRUG CORPORATION, AS INITIAL SERVICER,




THE VARIOUS PURCHASERS GROUPS FROM TIME TO TIME PARTY HERETO




AND




WACHOVIA BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. PURCHASE ARRANGEMENTS
	 	 	1	 
	Section 1.1 Purchase Facility
	 	 	1	 
	Section 1.2 Incremental Purchases
	 	 	2	 
	Section 1.3 Decreases
	 	 	2	 
	Section 1.4 Deemed Collections; Purchase Limit
	 	 	3	 
	Section 1.5 Payment Requirements and Computations
	 	 	4	 
	Section 1.6 Extension of Termination Date
	 	 	4	 
	Section 1.7 Sharing of Payments, etc
	 	 	5	 
	ARTICLE II. PAYMENTS AND COLLECTIONS
	 	 	5	 
	Section 2.1 Payments of Recourse Obligations
	 	 	5	 
	Section 2.2 Collections Prior to the Final Facility Termination
Date; Repayment of Certain Demand Advances
	 	 	5	 
	Section 2.3 Repayment of Demand Advances on the Final Facility
Termination Date; Collections
	 	 	6	 
	Section 2.4 Payment Recission
	 	 	7	 
	Section 2.5 Clean Up Call
	 	 	7	 
	ARTICLE III. COMMERCIAL PAPER FUNDING
	 	 	7	 
	Section 3.1 CP Costs
	 	 	7	 
	Section 3.2 Calculation of CP Costs
	 	 	8	 
	Section 3.3 CP Costs Payments
	 	 	8	 
	Section 3.4 Default Rate
	 	 	8	 
	ARTICLE IV. BANK RATE FUNDINGS
	 	 	8	 
	Section 4.1 Bank Rate Fundings
	 	 	8	 
	Section 4.2 Yield Payments
	 	 	8	 
	Section 4.3 Bank Rate Funding Yield Rates
	 	 	8	 
	Section 4.4 Suspension of the LIBO Rate
	 	 	9	 
	Section 4.5 Default Rate
	 	 	9	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	9	 
	Section 5.1 Representations and Warranties of the Seller
	 	 	9	 
	Section 5.2 Representations and Warranties of the Seller With
Respect to Each Sale of Receivables
	 	 	12	 
	Section 5.3 Representations and Warranties of Servicer
	 	 	13	 
	ARTICLE VI. CONDITIONS OF PURCHASES
	 	 	16	 






 


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	 	 	Page	 
	Section 6.1 Conditions Precedent to Initial Incremental Purchase
	 	 	16	 
	Section 6.2 Conditions Precedent to All Purchases and Reinvestments
	 	 	17	 
	ARTICLE VII. COVENANTS
	 	 	17	 
	Section 7.1 Affirmative Covenants of the Seller
	 	 	17	 
	Section 7.2 Negative Covenants of the Seller
	 	 	23	 
	Section 7.3 Affirmative Covenants of the Servicer
	 	 	25	 
	Section 7.4 Negative Covenants of the Servicer
	 	 	29	 
	ARTICLE VIII. ADMINISTRATION AND COLLECTION
	 	 	30	 
	Section 8.1 Designation of Servicer
	 	 	30	 
	Section 8.2 Duties of Servicer
	 	 	31	 
	Section 8.3 Collection Notices
	 	 	32	 
	Section 8.4 Responsibilities of Seller
	 	 	33	 
	Section 8.5 Settlement Reports
	 	 	33	 
	Section 8.6 Servicing Fee
	 	 	33	 
	ARTICLE IX. AMORTIZATION EVENTS
	 	 	34	 
	Section 9.1 Amortization Events
	 	 	34	 
	Section 9.2 Remedies
	 	 	37	 
	ARTICLE X. INDEMNIFICATION
	 	 	38	 
	Section 10.1 Indemnities by the Seller Parties
	 	 	38	 
	Section 10.2 Increased Cost and Reduced Return
	 	 	40	 
	Section 10.3 Other Costs and Expenses
	 	 	41	 
	ARTICLE XI. THE AGENTS
	 	 	41	 
	Section 11.1 Appointment and Authorization
	 	 	41	 
	Section 11.2 Delegation of Duties
	 	 	42	 
	Section 11.3 Exculpatory Provisions
	 	 	42	 
	Section 11.4 Reliance by Agents
	 	 	42	 
	Section 11.5 Notice of Amortization Events
	 	 	43	 
	Section 11.6 Non-Reliance on Administrator, Purchaser Agents and Other Purchasers
	 	 	44	 
	Section 11.7 Administrators and Affiliates
	 	 	44	 
	Section 11.8 Indemnification
	 	 	44	 
	Section 11.9 Successor Administrator
	 	 	45	 
	ARTICLE XII. ASSIGNMENTS AND PARTICIPATIONS
	 	 	45	 
	Section 12.1 Successors and Assigns; Participations; Assignments
	 	 	45	 






 


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	 	 	Page	 
	ARTICLE XIII. MISCELLANEOUS
	 	 	47	 
	Section 13.1 Waivers and Amendments
	 	 	47	 
	Section 13.2 Notices
	 	 	47	 
	Section 13.3 Protection of Administrator’s Security Interest
	 	 	48	 
	Section 13.4 Confidentiality
	 	 	49	 
	Section 13.5 Bankruptcy Petition
	 	 	49	 
	Section 13.6 Limitation of Liability
	 	 	50	 
	Section 13.7 CHOICE OF LAW
	 	 	50	 
	Section 13.8 CONSENT TO JURISDICTION
	 	 	50	 
	Section 13.9 WAIVER OF JURY TRIAL
	 	 	50	 
	Section 13.10 Integration; Binding Effect; Survival of Terms
	 	 	51	 
	Section 13.11 Counterparts; Severability; Section References
	 	 	51	 
	Section 13.12 Characterization
	 	 	51	 






 


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Exhibits and Schedules




	 	 
	Exhibit I Definitions

	 
	Exhibit II Form of Purchase Notice

	 
	Exhibit III  Places of Business of the Seller Parties; Locations of
Records; Federal Employer Identification Number(s)

	 
	Exhibit IV Names of Collection Banks; Collection Accounts

	 
	Exhibit V Form of Compliance Certificate

	 
	Exhibit VI Form of Collection Account Agreement

	 
	Exhibit VII Credit and Collection Policy

	 
	Exhibit VIII Form of Settlement Report

	 
	Exhibit IX Form of Assumption Agreement

	 
	Exhibit X Form of Transfer Supplement

	 
	Exhibit XI Form of Contract(s)

	 
	Exhibit XII Form of Performance Undertaking

	 
	Exhibit XIII List of Responsible Officers

	 
	Exhibit XIV Form of Interim Settlement Report

	 
	Exhibit XV Form of Reduction Notice

	 
	Exhibit XVI Form of Legend

	 
	Exhibit XVII Form of Collection Account Amendment and Assignment

	 
	Schedule A Closing Documents

	 






 


iv









 





RECEIVABLES PURCHASE AGREEMENT




THIS RECEIVABLES PURCHASE AGREEMENT, dated as of July 10, 2003 is entered into by and among:





(a) Amerisource Receivables Financial Corporation, a Delaware corporation (“Seller”),




(b) AmerisourceBergen Drug Corporation, a Delaware corporation (“ABDC”), as initial
Servicer (the Servicer together with Seller, the “Seller Parties” and each, a “Seller Party”),




(c) the various Purchaser Groups from time to time party hereto, and




(d) Wachovia Bank, National Association, as administrator for each Purchaser Group
(together with its successors and assigns in such capacity, the “Administrator”).



Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings
assigned to such terms in Exhibit I.




PRELIMINARY STATEMENTS





Seller desires to transfer and assign Receivable Interests from time to time.





The Purchasers desire to purchase Receivable Interests from Seller from time to time.





Wachovia Bank, National Association has been requested and is willing to act as
Administrator on behalf of the Purchasers and their assigns in accordance with the terms
hereof.




ARTICLE I.




PURCHASE ARRANGEMENTS





Section 1.1 Purchase Facility.




(a) Upon the terms and subject to the conditions of this Agreement (including, without
limitation, Article VI), from time to time prior to the applicable Facility Termination Date,
Seller may request that the Conduit Purchasers, or, if a Conduit Purchaser (in its sole discretion)
denies such request or is unable to fund (in which case it shall provide notice of such denial or
inability to the Seller, the Administrator and its Purchaser Agent), request that the Related
Committed Purchasers, purchase from Seller undivided ownership interests in the Receivables and the
associated Related Security and Collections (which interest shall be held by the Administrator on
behalf of the applicable Purchasers). Each Conduit Purchaser may (in its sole discretion), and each
Related Committed Purchaser severally hereby agrees to, make Incremental Purchases, on the terms
and subject to the conditions hereof before the applicable Facility Termination Date, ratably based
on the applicable Purchaser Group’s Ratable Share of each Incremental Purchase requested pursuant
to Section 1.2 (and, in the case of each Related


 


 









 





Committed Purchaser, its Commitment Percentage of its Purchaser Group’s Ratable Share of such
Purchase); provided that no Purchase shall be made by any Purchaser if, after giving effect
thereto, either (i) if such Purchaser is a Related Committed Purchaser, such Purchaser’s aggregate
Invested Amount would exceed its Available Commitment, (ii) the Group Invested Amount would exceed
the Group Commitment for such Purchaser’s Purchaser Group, or (iii) the aggregate of the Receivable
Interests would exceed 100%. It is the intent of the Conduit Purchasers to fund any Purchases
thereby through the issuance of Commercial Paper. If for any reason any Conduit Purchaser is
unable, or determines that it is undesirable, to issue Commercial Paper to fund or maintain its
investment in the Receivable Interests, or is unable for any reason to repay such Commercial Paper
upon the maturity thereof, such Conduit Purchaser may avail itself of a Bank Rate Funding to the
extent available. If any Purchaser funds or refinances its investment in a Receivable Interest
through any means other than the issuance of Commercial Paper, in lieu of paying CP Costs on the
Invested Amount pursuant to Article III hereof, Seller will pay Yield thereon at the Alternate Base
Rate or the LIBO Rate, selected in accordance with Article IV hereof. Nothing herein shall be
deemed to constitute a commitment of any Conduit Purchaser to issue Commercial Paper.




(b) Seller may, upon at least 30 days’ notice to the Administrator (which shall promptly
forward a copy to each Purchaser Agent), terminate in whole or reduce in part, the unused portion
of the Purchase Limit (but not below the amount which would cause the Group Investment of any
Purchaser Group to exceed its Group Commitment (after giving effect to such reduction) and, unless
terminated in whole, not below $100,000,000); provided that each partial reduction of the Purchase
Limit shall be in an amount equal to $10,000,000 (or a larger integral multiple of $1,000,000 if in
excess thereof). Such reduction shall, unless otherwise agreed to in writing by the Seller, the
Administrator and each Purchaser Agent be applied ratably to reduce the Group Commitment of each
Purchaser Group.




Section 1.2 Incremental Purchases. Seller shall provide the Administrator and each
Purchaser Agent with at least one (1) Business Day’s prior written notice in a form set forth as
Exhibit II hereto of each Incremental Purchase (each, a “Purchase Notice”) by 12:00 noon (New York
time) on the Business Day prior to the Purchase Date. Each Purchase Notice shall be subject to
Section 6.2 hereof and, except as set forth below, shall be irrevocable and shall specify the
requested Purchase Price (which shall not be less than $500,000, or a larger integral multiple of
$100,000, with respect to each Purchaser Group) and the Purchase Date. Following receipt of a
Purchase Notice, the applicable Purchaser Agent will determine whether the related Conduit
Purchaser will fund the requested Incremental Purchase. If such Conduit Purchaser (in its sole
discretion) elects not to fund an Incremental Purchase, the Incremental Purchase shall be funded
ratably by its Related Committed Purchasers (in accordance with such Related Committed Purchasers’
Available Commitments). On each Purchase Date, upon satisfaction of the applicable conditions
precedent set forth in Article VI, each applicable Purchaser shall deposit to the Facility Account,
in immediately available funds, no later than 2:00 p.m. (New York time), an amount equal to such
Purchaser’s portion (based on each Purchaser Group’s Ratable Share and, if applicable, such
Purchaser’s Available Commitment) of the requested Purchase Price.




Section 1.3 Decreases. Seller shall provide the Administrator and each Purchaser Agent
with prior written irrevocable notice in the form set forth as Exhibit XV hereto (a “Reduction
Notice”) of any proposed reduction of Aggregate Invested Amount at least two Business Days (or
three Business Days if the proposed reduction to be made to Purchasers in the


 


2









 





Market Street Funding Corporation Purchaser Group is $50,000,000 or more) prior to any such
proposed reduction. Such Reduction Notice shall designate (i) the date (the “Proposed Reduction
Date”) upon which any such reduction of Aggregate Invested Amount shall occur, and (ii) the amount
of Aggregate Invested Amount to be reduced (the “Aggregate Reduction”) which shall be applied to
all Receivable Interests (ratably, according to each Purchaser’s aggregate Invested Amount).





Section 1.4 Deemed Collections; Purchase Limit.





(a) If on any day:





(i) the Outstanding Balance of any Receivable is reduced or cancelled as a result of any
credit issued for returned or repossessed goods, any shortages, any pricing adjustment, any
volume rebate or any other allowance, adjustment or deduction by Originator or any Affiliate
thereof, or as a result of any governmental or regulatory action, or





(ii) the Outstanding Balance of any Receivable is reduced or canceled as a result of a
setoff or disputed item in respect of any claim by the Obligor thereof (whether such claim
arises out of the same or a related or an unrelated transaction), or





(iii) the Outstanding Balance of any Receivable is reduced on account of the obligation
of Originator or any Affiliate thereof to pay to the related Obligor any rebate or refund, or





(iv) the Outstanding Balance of any Receivable is less than the amount included in
calculating the Net Pool Balance for purposes of any Settlement Report (for any reason other
than receipt of Collections or such Receivable becoming a Defaulted Receivable), or





(v) any of the representations or warranties of Seller with respect to any Receivable set
forth in Article V were not true when made,



then, on such day, Seller shall be deemed to have received a Collection of such Receivable (A) in
the case of clauses (i)-(iv) above, in the amount of such reduction or cancellation or the
difference between the actual Outstanding Balance and the amount included in calculating such Net
Pool Balance, as applicable; and (B) in the case of clause (v) above, in the amount of the
Outstanding Balance of such Receivable and, not later than one (1) Business Day thereafter shall
pay to the Collection Account the amount of any such Collection deemed to have been received in the
same manner as actual cash collections are distributed under the terms of this Agreement.



(b) Seller shall ensure that the Aggregate Invested Amount at no time exceeds the Purchase
Limit. If at any time the Aggregate Invested Amount exceeds the Purchase Limit, Seller shall pay to
each Purchaser Agent for the benefit of the related Purchasers immediately an amount to be applied
to reduce the Aggregate Invested Amount (ratably, according to each Purchaser’s aggregate Invested
Amount), such that after giving effect to such payment the Aggregate Invested Amount is less than
or equal to the Purchase Limit.


 


3









 






(c) Seller shall also ensure that the aggregate of the Receivable Interests shall at no time
exceed 100%. If the aggregate of the Receivable Interests exceeds 100%, Seller shall pay to each
Purchaser Agent for the benefit of the related Purchasers on or before the next Business Day an
amount to be applied to reduce the Aggregate Invested Amount (ratably, according to each
Purchaser’s aggregate Invested Amount), such that after giving effect to such payment the aggregate
of the Receivable Interests equals or is less than 100%.




Section 1.5 Payment Requirements and Computations. All amounts to be paid or deposited
by any Seller Party pursuant to any provision of this Agreement shall be paid or deposited in
accordance with the terms hereof no later than 2:00 p.m. (New York time) on the day when due in
immediately available funds, and if not received before 2:00 p.m. (New York time) shall be deemed
to be received on the next succeeding Business Day. If such amounts are payable to or for the
account of any Purchaser, such amounts shall be paid to the account from time to time specified by
the related Purchaser Agent to the Seller and the Servicer. All computations of CP Costs, Yield,
per annum fees calculated as part of any CP Costs, per annum fees hereunder and per annum fees
under the Fee Letters shall be made on the basis of a year of 360 days for the actual number of
days elapsed. If any amount hereunder shall be payable on a day which is not a Business Day, such
amount shall be payable on the next succeeding Business Day.




Section 1.6 Extension of Termination Date. The Seller may advise the Administrator
(which shall promptly forward a copy to each Purchaser Agent) in writing of its desire to extend
the Scheduled Facility Termination Date for each Group Commitment (or portion thereof), provided
such request is made not more than 90 days (or such other number of days as to which the applicable
Purchaser Agent shall consent) prior to, and not less than 60 days prior to, the next Scheduled
Facility Termination Date. In the event that the Purchasers in such Purchaser Group are all
agreeable to such extension, the related Purchaser Agent shall so notify the Seller and the
Administrator in writing (it being understood that the Purchasers may accept or decline such a
request in their sole discretion and on such terms as they may elect) not less than 30 days prior
to such next Scheduled Facility Termination Date and the Seller, the Administrator, the Purchaser
Agents and the Purchasers shall enter into such documents as the Purchasers may deem necessary or
appropriate to reflect such extension, and all reasonable costs and expenses incurred by the
Purchasers, the Administrator and the Purchaser Agents in connection therewith (including
reasonable attorneys’ fees and expenses) shall be paid by the Seller. In the event any Purchaser in
a Purchaser Group declines the request for such extension, such Purchaser shall so notify the
related Purchaser Agent and the Purchaser Agent shall so notify the Seller and the Administrator of
such determination (it being understood that if any such Purchaser Group does not extend its Group
Commitment hereunder or assign its obligations to new Purchasers (willing to extend such Facility
Termination Date) in accordance with Section 12.1, then the Purchase Limit shall be reduced by an
amount equal to that portion of the Commitment of such Exiting Purchasers with respect to which the
Scheduled Facility Termination Date has occurred and the Commitment Percentages and Group
Commitments of the Purchasers within each Purchaser Group shall be appropriately adjusted);
provided that, the failure of such Purchaser to notify the Purchaser Agent or of the Purchaser
Agent to notify the Seller or the Administrator of the determination to decline such extension
shall not affect the understanding and agreement that the applicable Purchasers shall be deemed to
have refused to grant the requested extension in the event such Purchaser Agent fails to
affirmatively notify the Seller, in writing, of their agreement to accept the requested extension.




 


4









 







Section 1.7 Sharing of Payments, etc. If any Conduit Purchaser or any Related
Committed Purchaser (for purpose of this Section 1.7 only, a “Recipient”) shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on
account of any interest in the Receivable Interest owned by it in excess of its ratable share
thereof, such Recipient shall forthwith purchase from the Conduit Purchasers and/or the Related
Committed Purchasers entitled to a share of such amount participations in the percentage interests
owned by such Persons as shall be necessary to cause such
Recipient to share the excess payment ratably with each such other Person entitled thereto;
provided, however, that if all or any portion of such excess payment is thereafter recovered from
such Recipient, such purchase from each such other Person shall be rescinded and each such other
Person shall repay to the Recipient the purchase price paid by such Recipient for such
participation to the extent of such recovery, together with an amount equal to such other Person’s
ratable share (according to the proportion of (a) the amount of such other Person’s required
payment to (b) the total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.




ARTICLE II.




PAYMENTS AND COLLECTIONS




Section 2.1 Payments of Recourse Obligations. Seller hereby promises to pay the
following (collectively, the “Recourse Obligations”):





(a) all amounts due and owing under Section 1.3 or 1.4 on the dates specified therein;





(b) the fees set forth in the Fee Letters on the dates specified therein;





(c) all accrued and unpaid Yield on the Receivable Interests accruing Yield at the
Alternate Base Rate or the Default Rate on each Settlement Date applicable thereto;





(d) all accrued and unpaid Yield on the Receivable Interests accruing Yield at the LIBO
Rate on each Settlement Date applicable thereto;





(e) all accrued and unpaid CP Costs on the Receivable Interests funded with Commercial
Paper on each Settlement Date; and





(f) all Broken Funding Costs and Indemnified Amounts upon demand.




Section 2.2 Collections Prior to the Final Facility Termination Date; Repayment of Certain
Demand Advances.




(a) Prior to the Final Facility Termination Date, any Deemed Collections received by the
Servicer and the Purchasers’ Portion of any Collections received by the Servicer shall be set aside
and held in trust by the Servicer for the payment of any accrued and unpaid Aggregate Unpaids or
for a Reinvestment as provided in this Section 2.2. If at any time any Collections are received by
the Servicer prior to the Final Facility Termination Date, Seller hereby requests and each
Purchaser (other than any Exiting Purchasers) hereby agrees to make, simultaneously with such
receipt, a reinvestment (each, a “Reinvestment”) with the Purchasers’





 


5









 







Portion of the balance of each and every Collection received by the Servicer such that after giving
effect to such Reinvestment, the Invested Amount of the Receivable Interests of each Purchaser
(other than an Exiting Purchaser) immediately after such receipt and corresponding Reinvestment
shall be equal to the amount of such Invested Amounts immediately prior to such receipt.




(b) On each Settlement Date prior to the Final Facility Termination Date, the Servicer shall
remit to each Purchaser Agent for the benefit of its Purchaser Group (or, if applicable, to the
Administrator for its own benefit) the amounts set aside during the preceding Calculation Period
that have not been subject to a Reinvestment and (after deduction of its Servicing Fee) apply such
amounts (if not previously paid in accordance with Section 2.1) to the Aggregate Unpaids in the
order specified:




first, ratably to the payment of all accrued and unpaid CP Costs, Yield and Broken
Funding Costs (if any) that are then due and owing,





second, ratably to the payment of all accrued and unpaid fees under the Fee Letters (if
any) that are then due and owing,





third, to the ratable reduction of the aggregate Invested Amount of each Exiting
Purchaser,





fourth, if required under Section 1.3 or 1.4, to the ratable reduction of Aggregate
Invested Amount (less the amount, if any, distributed pursuant to clause third above),





fifth, for the ratable payment of all other unpaid Recourse Obligations, if any, that are
then due and owing, and





sixth, the balance, if any, to Seller or otherwise in accordance with Seller’s
instructions.




(c) If the Collections are insufficient to pay the Servicing Fee and the amounts specified in
clauses first through fifth above on any Settlement Date, Seller shall make demand upon ABDC for
repayment of any outstanding Demand Advances in an aggregate amount equal to the lesser of (i) the
amount of such shortfall in Collections, and (ii) the aggregate outstanding principal balance of
the Demand Advances, together with all accrued and unpaid interest thereon, and ABDC hereby agrees
to pay such amount to the Collection Account for distribution on such Settlement Date in accordance
with the priorities above.




Section 2.3 Repayment of Demand Advances on the Final Facility Termination Date;
Collections




(a) On the Final Facility Termination Date, ABDC hereby agrees to repay the aggregate
outstanding principal balance of all Demand Advances, together with all accrued and unpaid interest
thereon, to the Collection Account, without demand or notice of any kind, all of which are hereby
expressly waived by ABDC.




(b) On the Final Facility Termination Date and on each day thereafter, the Servicer shall set
aside and hold in trust, for the Secured Parties, all Collections received on each





 


6









 







such day. On and after the Final Facility Termination Date, the Servicer shall, on each Settlement
Date and on each other Business Day specified by the Administrator (after deduction of any accrued
and unpaid Servicing Fee as of such date): (i) remit to each Purchaser Agent for the benefit of its
Purchaser Group (or, if applicable, to the Administrator for its own benefit) the amounts set aside
pursuant to the preceding two sentences, and (ii) apply such amounts to reduce the Aggregate
Unpaids as follows:





first, to the reimbursement of the Administrator’s and each Purchaser Agent’s costs of
collection and enforcement of this Agreement,





second, ratably to the payment of all accrued and unpaid CP Costs, Yield and Broken
Funding Costs,





third, ratably to the payment of all accrued and unpaid fees under the Fee Letters,





fourth, to the ratable reduction of Aggregate Invested Amount,





fifth, for the ratable payment of all other Aggregate Unpaids, and





sixth, after the Final Payout Date, to Seller.




Section 2.4 Payment Recission. No payment of any of the Aggregate Unpaids shall be
considered paid or applied hereunder to the extent that, at any time, all or any portion of such
payment or application is rescinded by application of law or judicial authority, or must otherwise
be returned or refunded for any reason. Seller shall remain obligated for the amount of any payment
or application so rescinded, returned or refunded, and shall promptly pay to the applicable
Purchaser Agent (for application to the Person or Persons who suffered such recission, return or
refund) the full amount thereof, plus interest thereon at the Default Rate from the date of any
such recission, return or refunding.




Section 2.5 Clean Up Call. In addition to Seller’s rights pursuant to Section 1.3,
Seller shall have the right (after providing the Administrator and each Purchaser Agent with at
least two (2) Business Days prior notice), at any time following the reduction of the Aggregate
Invested Amount to a level that is less than 10.0% of the original Purchase Limit, to repurchase
all, but not less than all, of the then outstanding Receivable Interests plus any Broken Funding
Costs. The purchase price in respect thereof shall be an amount equal to the Aggregate Unpaids
through the date of such repurchase, payable in immediately available funds in accordance with
Section 2.3(b). Such repurchase shall be without representation, warranty or recourse of any kind
by, on the part of, or against any Purchaser, any Purchaser Agent or the Administrator.




ARTICLE III.




COMMERCIAL PAPER FUNDING




Section 3.1 CP Costs. Seller shall pay CP Costs with respect to the Invested Amount of
all Receivable Interests funded through the issuance of Commercial Paper. With respect to
Commercial Paper issued by EagleFunding Capital Corporation or Atlantic Asset Securitization Corp.,
Seller may from time to time request the duration of the next tranche of Commercial Paper. Notice
of such request shall be provided to the applicable Purchaser Agent by 2:00 p.m.





 


7









 







(New York time) on the Business day prior to the issuance of such Commercial Paper. The Purchaser
Agent shall use reasonable efforts to accommodate such request but shall have the right to select
the duration of the Commercial Paper whether or not the Seller has made a request.




Section 3.2 Calculation of CP Costs. On each Business Day, each Purchaser (or the
applicable Purchaser Agent on its behalf) shall calculate the aggregate amount of CP Costs
applicable to its Receivable Interests accrued through the end of the preceding Business Day and
shall notify Seller of such aggregate amount; provided, however, if any Purchaser is unable or
unwilling to make such daily calculation, such Purchaser (or the applicable Purchaser Agent on its
behalf) shall only be required to notify the Seller on the first Business Day of each calendar week
with respect to the applicable CP Costs for each Business day in the preceding week.




Section 3.3 CP Costs Payments. On each Settlement Date, Seller shall pay to the
applicable Purchaser Agent (for the benefit of the related Conduit Purchaser) an aggregate amount
equal to all accrued and unpaid CP Costs in respect of the portion of the Invested Amounts of all
Receivable Interests funded by such Conduit Purchaser with Commercial Paper for the Calculation
Period then most recently ended in accordance with Article II.




Section 3.4 Default Rate. From and after the occurrence of an Amortization Event, all
Receivable Interests shall accrue Yield at the Default Rate.




ARTICLE IV.




BANK RATE FUNDINGS




Section 4.1 Bank Rate Fundings. Prior to the occurrence of an Amortization Event, the
portion of outstanding Invested Amount of each Receivable Interest funded with Bank Rate Fundings
shall accrue Yield for each day during its Interest Period at either the LIBO Rate or the Alternate
Base Rate in accordance with the terms and conditions hereof. Until Seller gives the required
notice to the Administrator and the applicable Purchaser Agent of another Yield Rate in accordance
with Section 4.3, the initial Yield Rate for any Receivable Interest funded with a Bank Rate
Funding shall be the Alternate Base Rate (unless the Default Rate is then applicable). If any
undivided interest in a Receivable Interest initially funded with Commercial Paper is sold (or
otherwise participated) to the Liquidity Providers pursuant to a Liquidity Agreement, such
undivided interest in such Receivable Interest shall be deemed to have an Interest Period
commencing on the date of such sale.




Section 4.2 Yield Payments. On the Settlement Date for each Receivable Interest that
is funded with a Bank Rate Funding, Seller shall pay to each applicable Purchaser Agent (for the
benefit of its Purchaser Group) an aggregate amount equal to the accrued and unpaid Yield thereon
for the entire Interest Period of each related Bank Rate Funding in accordance with Article II.




Section 4.3 Bank Rate Funding Yield Rates. Seller may select the LIBO Rate (subject to
Section 4.4 below) or the Alternate Base Rate for each Bank Rate Funding. Seller shall by 12:00
noon (New York time): (i) at least three (3) Business Days prior to the commencement of any
Interest Period with respect to which the LIBO Rate is being requested as a new Yield Rate and (ii)
at least one (1) Business Day prior to the commencement of any Interest Period with





 


8









 







respect to which the Alternate Base Rate is being requested as a new Yield Rate, give the
applicable Purchaser Agent irrevocable notice of the new Yield Rate for the Bank Rate Funding
associated with such new Interest Period. Unless Seller gives sufficient notice to the applicable
Purchaser Agent of another Yield Rate (in accordance with the preceding sentence), the initial
Yield Rate for any Bank Rate Funding shall be the Alternate Base Rate (unless the Default Rate is
then applicable).




Section 4.4 Suspension of the LIBO Rate. If any Related Committed Purchaser or
Liquidity Provider notifies the related Purchaser Agent that it has determined that funding its
ratable share of the Bank Rate Fundings at a LIBO Rate would violate any applicable law, rule,
regulation, or directive of any governmental or regulatory authority, whether or not having the
force of law, or that (i) deposits of a type and maturity appropriate to match fund its Bank Rate
Funding at such LIBO Rate are not available or (ii) such LIBO Rate does not accurately reflect the
cost of acquiring or maintaining a Bank Rate Funding at such LIBO Rate, then such Purchaser Agent
shall suspend the availability of such LIBO Rate and require Seller to select the Alternate Base
Rate for any Bank Rate Funding accruing Yield at such LIBO Rate.




Section 4.5 Default Rate. From and after the occurrence of an Amortization Event, all
Bank Rate Fundings shall accrue Yield at the Default Rate.




ARTICLE V.




REPRESENTATIONS AND WARRANTIES





Section 5.1 Representations and Warranties of the Seller. The Seller hereby represents
and warrants to the Administrator, each Purchaser Agent and each Purchaser, as to itself, as of the
date hereof and as of the date of each Incremental Purchase and the date of each Reinvestment that:




(a) Organization and Qualification. The Seller’s only jurisdiction of organization is
correctly set forth in the preamble of this Agreement. The Seller is a corporation duly organized,
validly existing and in good standing under the Laws of its jurisdiction of incorporation. The
Seller is duly qualified to do business as a foreign corporation in good standing in each
jurisdiction in which the ownership of its properties or the nature of its activities (including
transactions giving rise to Receivables), or both, requires it to be so qualified or, if not so
qualified, the failure to so qualify would not have a material adverse effect on its financial
condition or results of operations.




(b) Authority. The Seller has the legal power and authority to execute and deliver the
Transaction Documents, to make the sales provided for herein and to perform its obligations under
this Agreement and the other Transaction Documents.




(c) Execution and Binding Effect. Each of the Transaction Documents to which the
Seller is a party has been duly and validly executed and delivered by the Seller and (assuming the
due and valid execution and delivery thereof by the other parties thereto), constitutes a legal,
valid and binding obligation of the Seller enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar
Laws of general application relating to or affecting the





 


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enforcement of creditors’ rights or by general principles of equity, and will vest absolutely and
unconditionally in the Administrator (for the benefit of the Secured Parties) a valid undivided
security interest in the Receivables purported to be assigned thereby, subject to no Liens
whatsoever. Upon the filing of the necessary financing statements under the UCC as in effect in the
jurisdiction whose Law governs the perfection of the Administrator’s (for the benefit of the
Secured Parties) ownership and security interests in the Receivables, such interests will be
perfected under Article 9 of such UCC, prior to and enforceable against all creditors of and
purchasers from the Seller and all other Persons whatsoever (other than the Administrator, for the
benefit of the Secured Parties, and their successors and assigns).




(d) Authorizations and Filings. No authorization, consent, approval, license,
exemption or other action by, and no registration, qualification, designation, declaration or
filing with, any Official Body is or will be necessary or, in the opinion of the Seller, advisable
in connection with the execution and delivery by the Seller of each of the Transaction Documents to
which the Seller is a party, the consummation by the Seller of the transactions herein or therein
contemplated or the performance by the Seller of or the compliance by the Seller with the terms and
conditions hereof or thereof, to ensure the legality, validity or enforceability hereof or thereof,
or to ensure that the Administrator (for the benefit of the Secured Parties) will have an ownership
and security interest in and to the Receivables which is perfected and prior to all other Liens
(including competing ownership or security interests), other than the filing of financing
statements under the UCC in the jurisdiction of the Seller’s Location and of the Originator’s
Location.




(e) Location of Chief Executive Office, etc. As of the date hereof: (i) the Seller’s
chief executive office is located at the address for notices set forth on the signature page
hereof; (ii) the offices where the Seller keeps all of its Records are listed on Exhibit III
hereto; and (iii) since its incorporation, the Seller has operated only under the names identified
in Exhibit III hereto, and has not changed its name, merged or consolidated with any other
corporation or been the subject of any proceeding under Title 11, United States Code (Bankruptcy),
except as disclosed in Exhibit III hereto.




(f) Perfection. This Agreement is effective to create a valid security interest in
favor of the Administrator for the benefit of the Secured Parties in the Purchased Assets to secure
payment of the
Aggregate Unpaids, free and clear of any Lien except as created by the Transaction Documents.
There have been duly filed all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the
Administrator’s (on behalf of the Secured Parties) security interest in the Purchased Assets. Such
Seller’s only jurisdiction of organization is Delaware.




(g) Absence of Conflicts. Neither the execution and delivery by the Seller of each of
the Transaction Documents to which the Seller is a party, nor the consummation by the Seller of the
transactions herein or therein contemplated, nor the performance by the Seller of or the compliance
by the Seller with the terms and conditions hereof or thereof, will (i) violate any Law or (ii)
conflict with or result in a breach of or a default under (A) the certificate of incorporation or
by-laws of the Seller or (B) any agreement or instrument, including, without limitation, any and
all indentures, debentures, loans or other agreements to which the Seller is a party or by which it
or any of its properties (now owned or hereafter acquired) may be subject or bound, which would
have a material adverse effect on the financial position or results of





 


10









 







operations of the Seller or result in rendering any indebtedness evidenced thereby due and payable
prior to its maturity or result in the creation or imposition of any Lien pursuant to the terms of
any such instrument or agreement upon any property (now owned or hereafter acquired) of the Seller.
The Seller has not entered into any agreement with any Obligor prohibiting, restricting or
conditioning the assignment of any portion of the Receivables.




(h) No Amortization Event. No event has occurred and is continuing and no condition
exists which constitutes an Amortization Event.




(i) Accurate and Complete Disclosure. No information furnished by the Seller to the
Administrator, any Purchaser Agent or any Purchaser pursuant to or in connection with this
Agreement or any transaction contemplated hereby is false or misleading in any material respect as
of the date as of which such information was furnished (including by omission of material
information necessary to make such information not misleading).




(j) No Proceedings. There are no proceedings or investigations pending, or to the
knowledge of the Seller, threatened, before any Official Body (A) asserting the invalidity of the
Transaction Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by the Transaction Documents, or (C) seeking any determination or ruling that might
materially and adversely affect (i) the performance by either the Seller or the Servicer of its
obligations under the Transaction Documents or (ii) the validity or enforceability of the
Transaction Documents, the Contracts or any material amount of the Receivables.




(k) Bulk Sales Act. No transaction contemplated hereby requires compliance with any
bulk sales act or similar law.




(l) Litigation. No injunction, decree or other decision has been issued or made by any
Official Body that prevents, and to the knowledge of the Seller, no threat by any Person has been
made to attempt to obtain any such decision that would have a material adverse effect on, the
conduct by the Seller of a significant portion of the Seller’s business operations or any portion
of its business operations affecting the Receivables, and no litigation, investigation or
proceeding exists asserting the invalidity of the Transaction Documents, seeking to prevent the
consummation of any of the transactions contemplated by the Transaction Documents, or seeking any
determination or ruling that might materially and adversely affect (A) the performance by either
the Seller or the Servicer of its obligations under the Transaction Documents or (B) the validity
or enforceability of the Transaction Documents, the Contracts or any material amount of the
Receivables.




(m) Margin Regulations. The use of all funds acquired by the Seller under this
Agreement will not conflict with or contravene any of Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as the same may from time to time be amended, supplemented
or otherwise modified.




(n) Taxes. The Seller has timely filed all United States Federal income tax returns
and all other material tax returns which are required to be filed by it and has paid all taxes due
pursuant to such returns and paid or contested any assessment received by the Seller related to
such returns.





 


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(o) Books and Records. The Seller has indicated on its books and records (including
any computer files), that the Receivable Interest in the Receivables sold by the Seller hereunder
is the property of Purchasers. The Seller maintains at, or shall cause the Servicer to maintain at,
one or more of their respective offices listed in Exhibit III hereto the complete Records for the
Receivables.




(p) Creditor Approval. The Seller has obtained from its creditors (i) all approvals
necessary to sell and assign the Receivables and (ii) releases of any security interests in the
Receivables.




(q) Financial Condition. The Seller is not insolvent or the subject of any Event of
Bankruptcy and the sale of Receivables on such day will not be made in contemplation of the
occurrence thereof.




(r) Financial Information. If and when produced in accordance with the terms of this
Agreement, the consolidated balance sheet of the Seller as at the most recent Fiscal Year end and
the related statements of income of the Seller for the Fiscal Year then ended, fairly present the
consolidated financial position of the Seller as at such date and the consolidated results of the
operations, all in accordance with GAAP.




(s) Investment Company. The Seller is not an “investment company” or a company
“controlled by an investment company” within the meaning of the Investment Company Act of 1940, as
amended. The Seller is not a “holding company” or a “subsidiary holding company” of a “holding
company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, or any
successor statute.




(t) Payments to Applicable Originator. With respect to each Receivable transferred to
Seller under the Receivables Sale Agreement, Seller has given reasonably equivalent value to the
applicable Originator in consideration therefor and such transfer was not made for or on account of
an antecedent debt. No transfer by any Originator of any Receivable under the Receivables Sale
Agreement is or may be voidable under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C.
§§ 101 et seq.), as amended.




Section 5.2 Representations and Warranties of the Seller With Respect to Each Sale of
Receivables. By selling undivided ownership interests in Receivables to the Purchasers, either
by Incremental Purchase or Reinvestment, the Seller represents and warrants to the Administrator,
each Purchaser Agent and each Purchaser as of the date of such sale of an Incremental Purchase or
Reinvestment (in addition to its other representations and warranties contained herein or made
pursuant hereto) that:




(a) Purchase Notice. If such sale relates to an Incremental Purchase, all information
set forth on the related Purchase Notice is true and correct as of the date of such Incremental
Purchase.




(b) Assignment. This Agreement vests in the Administrator, for the benefit of the
Secured Parties, all the right, title and interest of the Seller in and to the Receivable Interest
in the Receivables, and the Related Security and Collections with respect thereto, and constitutes
a valid sale of or grant of a security interest in the Receivable Interest, enforceable against all
creditors of and purchasers from the Seller.





 


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(c) No Liens. Each Receivable, together with the related Contract and all purchase
orders and other agreements related to such Receivable, is owned by the Seller free and clear of
any Lien, except as provided herein, and is not subject to any Dispute, except as provided herein.
When each of the Purchasers makes a purchase of a Receivable Interest in such Receivable, it shall
have acquired and shall continue to have maintained an undivided percentage ownership interest to
the extent of its percentage of the Receivable Interest in such Receivable and in the Related
Security and the Collections with respect thereto free and clear of any Lien, except as provided
herein. The Seller has not and will not prior to the time of the sale of any such interest to the
Purchasers have sold, pledged, assigned, transferred or subjected, and will not thereafter sell,
pledge, assign, transfer or subject, to a Lien any of the Receivables, the Related Security or the
Collections, other than the assignment of Receivable Interests therein to the Administrator, for
the benefit of the Secured Parties, in accordance with the terms of this Agreement.




(d) Filings. On or prior to each Purchase and each recomputation of the Receivable
Interest, all financing statements and other documents required to be recorded or filed in order to
perfect and protect the Receivable Interest against all creditors of and purchasers from the Seller
and all other Persons whatsoever will have been duly filed in each filing office necessary for such
purpose and all filing fees and taxes, if any, payable in connection with such filings shall have
been paid in full.




(e) Credit and Collection Policy. The Originator’s Credit and Collection Policy of the
applicable Originator has been complied with in all material respects in regard to each Receivable
and related Contract.




(f) Collection Banks, Collection Accounts and Lock-Boxes. The names and addresses of
all Collection Banks, together with the numbers of all Collection Accounts and Lock-Boxes at such
Collection Banks and the addresses of all related Collection Accounts and Lock-Boxes, are specified
in Exhibit IV (or such other Collection Banks, Collection Accounts and Lock Boxes that have been
changed or established in accordance with Section 7.2(g)).




(g) Nature of Receivables. Each Receivable is, or will be, an eligible asset within
the meaning of Rule 3a-7 promulgated under the Investment Company Act of 1940, as amended from time
to time.




(h) Bona Fide Receivables. Each Receivable is an obligation of an Obligor arising out
of a past, current or future sale or performance by the applicable Originator, in accordance with
the terms of the Contract giving rise to such Receivable. The Seller has no knowledge of any fact
that should have led it to expect at the time of the initial creation of an interest in any
Receivable hereunder that such Receivable would not be paid in full when due except with respect to
any Dilution. Each Receivable classified as an “Eligible Receivable” by the Seller in any document
or report delivered hereunder satisfies the requirements of eligibility contained in the definition
of Eligible Receivable.




Section 5.3 Representations and Warranties of Servicer. The Servicer represents and
warrants to the Administrator, each Purchaser Agent and each Purchaser on and as of the date hereof
and as of the date of each Incremental Purchase and each Reinvestment after such date:





 


13









 







(a) Organization and Qualification. The Servicer’s only jurisdiction of organization
is in Delaware. The Servicer is a corporation duly organized, validly existing and in good standing
under the Laws of its jurisdiction of incorporation. The Servicer is duly qualified to do business
as a foreign corporation in good standing in each jurisdiction in which the ownership of its
properties or the nature of its activities, or both, requires it to be so qualified or, if not so
qualified, the failure to so qualify would not have a material adverse effect on its financial
condition or results of operations.




(b) Authority. The Servicer has the legal power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and thereunder.




(c) Execution and Binding Effect. This Agreement has been duly and validly executed
and delivered by the Servicer and (assuming the due and valid execution and delivery thereof by the
other parties thereto), constitutes a legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar Laws of general application relating to or
affecting the enforcement of creditors’ rights or by general principles of equity, and will vest
absolutely and unconditionally in the Administrator (for the benefit of the Secured Parties) an
ownership or security interest in the Receivables purported to be assigned thereby, subject to no
Liens whatsoever. Upon the filing of the necessary financing statements under the UCC as in effect
in the jurisdiction whose Law governs the perfection of the Administrator (for the benefit of the
Secured Parties) ownership or security interests in the Receivables, such interests will be
perfected under Article 9 of such UCC, prior to and enforceable against all creditors of and
purchasers from the Seller and all other Persons whatsoever (other than for the Administrator, for
benefit of the Secured Parties, and their successors and assigns).




(d) Authorizations and Filings. No authorization, consent, approval, license,
exemption or other action by, and no registration, qualification, designation, declaration or
filing with, any Official Body is or will be necessary or, in the opinion of the Servicer,
advisable in connection with the execution and delivery by the Servicer of this Agreement, the
consummation by the Servicer of the transactions herein or therein contemplated or the performance
by the Servicer of or the compliance by the Servicer with the terms and conditions hereof or
thereof, to ensure the legality, validity or enforceability hereof, or to ensure that the
Administrator (for the benefit of the Secured Parties) will have an ownership and security interest
in and to the Receivables which is perfected and prior to all other Liens (including competing
ownership or security interests), other than the filing of financing statements under the UCC in
the jurisdictions of each Originator’s Location and of the Seller’s Location.




(e) Absence of Conflicts. Neither the execution and delivery by the Servicer of this
Agreement, nor the consummation by the Servicer of the transactions herein contemplated, nor the
performance by the Servicer of or the compliance by the Servicer with the terms and conditions
hereof, will (i) violate any Law or (ii) conflict with or result in a breach of or a default under
(A) the certificate of incorporation or by-laws of the Servicer or (B) any agreement or instrument,
including, without limitation, any and all indentures, debentures, loans or other agreements to
which the Servicer is a party or by which it or any of its properties (now owned or hereafter
acquired) may be subject or bound, which would have a material adverse effect on the financial
position or results of operations of the Servicer or result in rendering any debt in excess of
$10,000,000 evidenced thereby due and payable prior to its maturity or result in





 


14









 







the creation or imposition of any Lien pursuant to the terms of any such instrument or agreement
upon any property (now owned or hereafter acquired) of the Servicer. The Servicer has not entered
into any agreement with any Obligor prohibiting, restricting or conditioning the assignment of any
portion of the Receivables.




(f) No Amortization Event. No event has occurred and is continuing and no condition
exists which constitutes a Amortization Event.




(g) Accurate and Complete Disclosure. No information furnished by a Responsible
Officer of the Servicer to the Administrator, any Purchaser Agent or any Purchaser pursuant to or
in connection with this Agreement or any transaction contemplated hereby is false or misleading in
any material respect as of the date as of which such information was furnished (including by
omission of material information necessary to make such information not misleading).




(h) No Proceedings. There are no proceedings or investigations pending, or to the
knowledge of the Servicer, threatened, before any Official Body (A) asserting the invalidity of the
Transaction Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by the Transaction Documents, or (C) seeking any determination or ruling that might
materially and adversely affect (i) the performance by either the Seller or the Servicer of its
obligations under this Agreement or (ii) the validity or enforceability of the Transaction
Documents, the Contracts or any material amount of the Receivables.




(i) No Change in Ability to Perform. Since the date on which the Servicer accepted its
duties hereunder, there has been no material adverse change in the ability of the Servicer to
perform its obligations hereunder.




(j) Credit and Collection Policy. The Credit and Collection Policy has been complied
with in all material respects in regard to each Receivable and related Contract.




(k) Financial Condition. The consolidated balance sheet of the AmerisourceBergen and
its Consolidated Subsidiaries (which shall include the Servicer) as at the most recent Fiscal Year
end and the related statements of income and cash flows of AmerisourceBergen and its Consolidated
Subsidiaries for the fiscal year then ended, certified by Ernst & Young LLP, independent
accountants, or another nationally recognized firm of independent accountants, are available as a
matter of public record. The Servicer will cause AmerisourceBergen to provide on the date of such
public filing or the next succeeding Business Day a certificate to the Administrator (which shall
promptly forward a copy to each Purchaser Agent), that such balance sheet and statements of income
and cash flows fairly present the consolidated financial position of AmerisourceBergen and its
Consolidated Subsidiaries as at such date and the consolidated results of the operations of and
consolidated cash flows of AmerisourceBergen and its Consolidated Subsidiaries for the period ended
on such date, all in accordance with GAAP. The unaudited consolidated balance sheet of
AmerisourceBergen and its Consolidated Subsidiaries as at most recent fiscal quarter end and the
related unaudited statements of income and cash flows of AmerisourceBergen and its Consolidated
Subsidiaries for the periods then ended are available as a matter of public record. The Servicer
will cause AmerisourceBergen to provide on the date of such public filing or the next succeeding
Business Day a certificate to the Administrator (which shall promptly forward a copy to each
Purchaser





 


15









 







Agent), that such balance sheet and statements of income and cash flows fairly present the
consolidated financial position of AmerisourceBergen and its Consolidated Subsidiaries as at such
date and the consolidated results of the operations of and consolidated cash flows of
AmerisourceBergen and its Consolidated Subsidiaries for the periods ended on such date, all in
accordance with GAAP.




(l) Litigation. No injunction, decree or other decision has been issued or made by any
Official Body that prevents, and to the knowledge of the Servicer, no threat by any Person has been
made to attempt to obtain any such decision that would have a material adverse effect on, the
conduct by the Servicer of a significant portion of its business operations or any portion of its
business operations affecting the Receivables, and no litigation, investigation or proceeding
asserting the invalidity of this Agreement, seeking to prevent the consummation of the transactions
contemplated by this Agreement, or seeking any determination or ruling that might materially and
adversely affect (A) the performance of the Servicer of its obligations under this Agreement, or
(B) the validity or enforceability of this Agreement, the Contracts or any material amount of the
Receivables.




(m) Insurance. The Servicer currently maintains insurance with respect to its
properties and businesses and causes its Subsidiaries to maintain insurance with respect to their
properties and business against loss or damage of the kinds customarily insured against by
corporations engaged in the same or similar business and similarly situated, of such types and in
such amounts as are customarily carried under
similar circumstances by such other corporations including, without limitation, workers’
compensation insurance.




(n) ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a material adverse effect on the business,
financial condition, operations or properties of Performance Guarantor and ERISA Affiliates taken
as a whole. The present value of all accumulated benefit obligations under each Pension Plan (based
on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such amounts, exceed by more
than $25,000,000 the fair market value of the assets of such Pension Plan, and the present value of
all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more than $25,000,000 the fair
market value of the assets of all such underfunded Pension Plans.




ARTICLE VI.




CONDITIONS OF PURCHASES




Section 6.1 Conditions Precedent to Initial Incremental Purchase. The initial
Incremental Purchase of a Receivable Interest under this Agreement is subject to the conditions
precedent that (a) the Administrator and each Purchaser Agent shall have received on or before the
date of such Purchase those documents listed on Schedule A and (b) the Administrator and each
Purchaser Agent shall have received all fees and expenses required to be paid on such date pursuant
to the terms of this Agreement and the Fee Letter.





 


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Section 6.2 Conditions Precedent to All Purchases and Reinvestments. Each Incremental
Purchase and each Reinvestment shall be subject to the further conditions precedent that (a) in the
case of each such Purchase: (i) the Servicer shall have delivered to the Administrator and each
Purchaser Agent on or prior to the date of such Purchase, in form and substance satisfactory to the
Administrator and each Purchaser Agent, all Settlement Reports as and when due under Section 8.5
and (ii) upon the Administrator’s or any Purchaser Agent’s request, the Servicer shall have
delivered to the Administrator and each Purchaser Agent at least one (1) Business Day prior to such
Purchase an interim settlement report in substantially the form of Exhibit XIV; (b) the
Administrator and each Purchaser Agent shall have received such other documents as it may
reasonably request and (c) on each Purchase Date, the following statements shall be true (and
acceptance of the proceeds of such Incremental Purchase or Reinvestment shall be deemed a
representation and warranty by Seller that such statements are then true):





(i) the representations and warranties set forth in Article V are true and correct on and
as of the date of such Incremental Purchase or Reinvestment as though made on and as of such
Purchase Date;





(ii) no event has occurred and is continuing, or would result from such Incremental
Purchase or Reinvestment, that will constitute an Amortization Event, and no event has
occurred and is continuing, or would result from such Incremental Purchase or Reinvestment,
that would constitute an Unmatured Amortization Event; and





(iii) after giving effect to such Incremental Purchase or Reinvestment, the Aggregate
Invested Amount will not exceed the Purchase Limit and the aggregate Receivable Interests will
not exceed 100%.



It is expressly understood that each Reinvestment shall, unless otherwise directed by the
Administrator, occur automatically on each day that the Servicer shall receive any Collections
without the requirement that any further action be taken on the part of any Person and
notwithstanding the failure of Seller to satisfy any
of the foregoing conditions precedent in respect of such Reinvestment. The failure of Seller to
satisfy any of the foregoing conditions precedent in respect of any Reinvestment shall give rise to
a right of the Administrator and each Purchaser Agent, which right may be exercised at any time on
demand of the Administrator or any Purchaser Agent, to rescind the related purchase and direct
Seller to pay to the Purchaser Agents, for the benefit of Purchasers (ratably, according to each
Purchaser’s aggregate Invested Amount), an amount equal to the Collections that shall have been
applied to the affected Reinvestment (but not in excess of the Aggregate Unpaids).




ARTICLE VII.




COVENANTS




Section 7.1 Affirmative Covenants of the Seller. In addition to its other covenants
contained herein or made pursuant hereto, the Seller covenants with the Administrator, each
Purchaser Agent and each Purchaser as follows:





 


17









 







(a) Notice of Amortization Event. Promptly upon becoming aware of, but in any event no
later than the next Business Day, any Amortization Event or Unmatured Amortization Event, the
Seller shall give the Administrator (which shall promptly forward a copy to each Purchaser Agent)
notice thereof, together with a written statement of a Responsible Officer setting forth the
details thereof and any action with respect thereto taken or contemplated to be taken by the
Seller.




(b) Notice of Material Adverse Change. Promptly upon becoming aware thereof, the
Seller shall give the Administrator (which shall promptly forward a copy to each Purchaser Agent)
notice of any material adverse change in the business, operations or financial condition of the
Seller, which reasonably could affect adversely the collectibility of the Receivables.




(c) Preservation of Corporate Existence. The Seller shall preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation,
and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect (i) the interests of the Administrator, any
Purchaser Agent or any Purchaser hereunder or (ii) the ability of the Seller to perform its
obligations under the Transaction Documents.




(d) Compliance with Laws. The Seller shall comply in all material respects with all
Laws applicable to the Seller, its business and properties, and all Receivables related to the
Receivable Interests.




(e) Enforceability of Obligations. The Seller shall take such actions as are
reasonable and within its power to ensure that, with respect to each Receivable, the obligation of
any related Obligor to pay the unpaid balance of such Receivable in accordance with the terms of
the related Contract remains legal, valid, binding and enforceable against such Obligor except as
otherwise permitted by Section 8.2(d).




(f) Books and Records. (i) The Seller shall, to the extent practicable, maintain and
implement administrative and operating procedures (including, without limitation, the ability to
recreate Records evidencing the Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, Records and other information, reasonably
necessary or advisable for the collection of all Receivables (including, without limitation,
Records adequate to permit the identification of all Related Security and Collections and
adjustments to each existing Receivable).





(ii) The Seller will (and will cause each Originator to): (A) on or prior to the date
hereof, mark its “Aged Trial Balance” with a legend in substantially the form set forth on
Exhibit XVI hereto and (B) upon the request of the Administrator or any Purchaser Agent
following the occurrence of an
Amortization Event: (x) mark each Contract with a legend describing the Administrator’s
security interest and (y) deliver to the Administrator all Contracts (including, without
limitation, all multiple originals of any such Contract constituting an instrument, a
certificated security or chattel paper) relating to the Receivables.





 


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(g) Fulfillment of Obligations. The Seller shall do nothing to impair the rights,
title and interest of the Administrator, any Purchaser Agent or any Purchaser in and to the
Receivable Interests and shall pay when due any taxes, including without limitation any sales tax,
excise tax or other similar tax or charge, payable in connection with the Receivables and their
creation and satisfaction.




(h) Obligor List. The Seller shall at all times maintain (or cause the Servicer to
maintain) a current list (which may be stored on computer systems, magnetic tapes or disks) of all
Obligors under Contracts related to Receivables, including the name, address, telephone number and
account number of each such Obligor. The list shall be updated as provided in Section 8.5(b), and
the Seller shall deliver or cause to be delivered a copy of such list to the Administrator (which
shall promptly forward a copy to each Purchaser Agent) as soon as practicable following the
Administrator’s request (but not more frequently than once each calendar quarter unless an
Amortization Event or Unmatured Amortization Event has occurred and is continuing).




(i) Litigation. As soon as possible, and in any event within three (3) Business Days
of the Seller’s knowledge thereof, the Seller shall give the Administrator (which shall promptly
forward a copy to each Purchaser Agent) notice of (i) any litigation, investigation or proceeding
against the Seller which may exist at any time which, in the reasonable judgment of the Seller,
could have a material adverse effect on the financial condition or results of operations of the
Seller, impair the ability of the Seller to perform its obligations under this Agreement, or
materially adversely affect the collectibility of the Receivables, and (ii) any material adverse
development in any such previously disclosed litigation.




(j) Notice of Relocation. The Seller shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) 45 days’ prior written notice of any relocation of
its Location. The Seller will at all times maintain its Location within a jurisdiction in the
United States in which Article 9 of the UCC is in effect as of the date hereof or the date of any
such relocation.




(k) Further Information. The Seller shall furnish or cause to be furnished to the
Administrator and each Purchaser Agent such other information as promptly as practicable, and in
such form and detail, as the Administrator or any Purchaser Agent may reasonably request.




(l) Fees, Taxes and Expenses. The Seller shall pay all filing fees, stamp taxes and
other similar taxes and expenses, including the fees and expenses set forth in Section 10.3, if
any, which may be incurred on account of or arise out of this Agreement and the documents and
transactions entered into pursuant to this Agreement.




(m) Compliance with Receivables Sale Agreement. The Seller will enforce all material
obligations and undertakings on the part of each Originator to be observed and performed under the
Receivables Sale Agreement. Seller will take all actions to perfect and enforce its rights and
interests (and the rights and interests of the Administrator (for the benefit of the Secured
Parties), as Seller’s assignee) under the Receivables Sale Agreement as the Administrator or any
Purchaser Agent may from time to time reasonably request, including, without limitation, making
claims to which it may be entitled under any indemnity, reimbursement or similar provision
contained in the Receivables Sale Agreement.





 


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(n) Audits. At any time, upon reasonable notice to the Seller (but not more than twice
per calendar year unless an Amortization Event or Unmatured Amortization Event has occurred), the
Seller shall permit the Administrator, together with each Purchaser Agent that wants to
participate, or such Person as the Administrator or such Purchaser Agents may designate, during
business hours, to conduct audits or visit and inspect any of the properties of the Seller to
examine the Records, internal controls and procedures maintained by the Seller and take copies and
extracts therefrom, and to discuss the Seller’s affairs with its officers, employees and
independent accountants. The Seller hereby authorizes such officers, employees and independent
accountants to discuss with the Administrator and each Purchaser Agent, or such Person they may
designate, the affairs of the Seller. The Seller shall reimburse the Administrator and each
Purchaser Agent for all reasonable fees, costs and out-of-pocket expenses incurred by or on behalf
of the Administrator and each Purchaser Agent in connection with up to two (2) such audits and
visits for each per calendar year promptly upon receipt of a written invoice therefor; provided
that, following the occurrence of an Amortization Event or an Unmatured Amortization Event, the
Seller shall reimburse the Administrator and each Purchaser Agent for all reasonable fees, costs
and out-of-pocket expenses incurred by or on behalf of the Administrator and each Purchaser Agent
in connection with the foregoing actions promptly upon receipt of written invoice therefor
regardless of the number of audits or visits in such year. Subject to the requirements of
applicable laws, the Administrator and each Purchaser Agent agrees to use commercially reasonable
precautions to keep confidential, in accordance with its respective customary procedures for
handling confidential information, any non-public information supplied to it by the Seller pursuant
to any such audit or visit which is identified by the Seller as being confidential at the time the
same is delivered to the Administrator and each Purchaser Agent.





(o) Separate Corporate Existence. The Seller shall:





(i) Maintain in full effect its existence, rights and franchises as a corporation under
the laws of the state of its incorporation and will obtain and preserve its qualification to
do business in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement and each Transaction Document and
each other instrument or agreement necessary or appropriate to proper administration hereof
and permit and effectuate the transactions contemplated hereby.





(ii) Maintain its own deposit account or accounts, separate from those of any of its
Affiliates, with commercial banking institutions. The funds of the Seller will not be diverted
to any other Person or for other than the corporate use of the Seller and, except as may be
expressly permitted by this Agreement, the funds of the Seller shall not be commingled with
those of any of its Affiliates.





(iii) To the extent that the Seller contracts or does business with vendors or service
providers where the goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing shall be fairly allocated to or among the Seller and
such entities for whose benefit the goods and services are provided, and the





 


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Seller and each such entity shall bear its fair share of such costs. All material transactions
between the Seller and any of its Affiliates shall be only on an arm’s-length basis.





(iv) Maintain a principal executive and administrative office through which its business
is conducted and a telephone number separate from those of its stockholders and Affiliates. At
all times have a Board of Directors consisting of three members, at least one member of which
is an Independent Director.





(v) Conduct its affairs strictly in accordance with its certificate of incorporation and
observe all necessary, appropriate and customary corporate formalities, including, but not
limited to, holding all regular and special stockholders’ and directors’ meetings appropriate
to authorize all corporate
action, keeping separate and accurate minutes of such meetings, passing all resolutions
or consents necessary to authorize actions taken or to be taken, and maintaining accurate and
separate books, records and accounts, including, but not limited to, intercompany transaction
accounts. Regular stockholders’ and directors’ meetings (or unanimous written consents in lieu
thereof) shall be held at least annually.





(vi) Ensure that decisions with respect to its business and daily operations shall be
independently made by the Seller (although the officer making any particular decision may also
be an employee, officer or director of an Affiliate of the Seller) and shall not be dictated
by an Affiliate of the Seller.





(vii) Act solely in its own corporate name and through its own authorized officers and
agents, and no Affiliate of the Seller shall be appointed to act as its agent, except as
expressly contemplated by this Agreement. The Seller shall at all times use its own
stationery.





(viii) Ensure that no Affiliate of the Seller shall advance funds to the Seller, other
than (i) capital contributions from ABDC, made to enable the Seller to pay the purchase price
of Receivables or (ii) as is otherwise provided herein or in any Transaction Document, and no
Affiliate of the Seller will otherwise supply funds to, or guaranty debts of, the Seller;
provided that an Affiliate of the Seller may provide funds to the Seller in connection with
the capitalization of the Seller, including the provision of capital necessary to assure that
the Seller has “substantial assets” as described in Treasury Regulation Section
301.7701-2(d)(2).





(ix) Other than organizational expenses and as expressly provided herein, pay all
expenses, indebtedness and other obligations incurred by it.





(x) Not enter into any guaranty, or otherwise become liable, with respect to any
obligation of any of its Affiliates.





(xi) Ensure that any financial reports required of the Seller shall comply with generally
accepted accounting principles and shall be issued separately from, but may be consolidated
with, any reports prepared for any of its Affiliates.





 


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(xii) Ensure that at all times it is adequately capitalized to engage in the transactions
contemplated in its certificate of incorporation, the Transaction Documents and this
Agreement.





(xiii) Take such action to ensure that: (A) the Seller is solvent, including, without
limitation, that it has not been rendered insolvent by the actions contemplated by the
Transaction Documents; (B) the Seller intends to and reasonably expects to survive as a
stand-alone entity, independent of financial assistance of any entity not contemplated by the
Transaction Documents; (C) the Seller shall at all times have its own telephone number
separate from that of ABDC; (D) neither the assets nor the creditworthiness of the Seller is
held out as being available for the payment of any liability of ABDC; (E) each of ABDC and the
Seller operates as a separate legal entity and not as a division or department thereof; (F)
the Seller does not engage in or expect to engage in business for which its remaining property
represents an unreasonably small capitalization; and (G) the Seller does not intend to incur
nor does it believe it will incur indebtedness that it will not be able to repay at its
maturity.




(p) Information. The Seller shall provide the Administrator (which shall promptly
forward a copy to each Purchaser Agent) with the following:





(i) as soon as practicable and in any event within 90 days following the close of each
fiscal quarter, excluding the last fiscal quarter, of each Fiscal Year of the Seller during
the term of this Agreement, an unaudited consolidated balance sheet of the Seller as of the
end of such quarter and unaudited consolidated statements of income of the Seller for such
quarter and for the Fiscal Year through such quarter, setting forth in comparative form the
corresponding figures for the corresponding quarter of the preceding Fiscal Year (provided
that such comparison will not be available until the report provided for the December, 2004
quarter), all in reasonable detail and certified by the chief financial officer of the Seller,
subject to adjustments of the type which would occur as a result of a year-end audit, as
having been prepared in accordance with GAAP; and





(ii) as soon as practicable and in any event within 120 days after the close of each
Fiscal Year of the Seller during the term of this Agreement, a consolidated balance sheet of
the Seller as at the close of such Fiscal Year and consolidated statements of income of the
Seller for such Fiscal Year, setting forth in comparative form the corresponding figures for
the preceding Fiscal Year (provided that such comparison will not be available until the
report provided for the September, 2004 Fiscal Year end), all in reasonable detail; provided
that following an Amortization Event or Unmatured Amortization Event, the Administrator or any
Purchaser Agent may require that such information be certified (with respect to the
consolidated financial statements) by independent certified public accountants of nationally
recognized standing selected by the Seller whose certificate or opinion accompanying such
financial statements shall not contain any qualification, exception or scope limitation not
satisfactory to the Administrator and each Purchaser Agent, and accompanied by any management
letter prepared by such accountants.





 


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(iii) Compliance Certificate. Together with the financial statements required
pursuant to this Section 7.1(p), a compliance certificate in substantially the form of Exhibit
V signed by an Authorized Officer of the Seller and dated the date of such annual financial
statement or such quarterly financial statement, as the case may be.




Section 7.2 Negative Covenants of the Seller. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance with its
terms, the Seller hereby covenants, as to itself, that it will not:




(a) No Rescissions or Modifications. Rescind or cancel any Receivable or related
Contract or modify any terms or provisions thereof or grant any Dilution to an Obligor, except in
accordance with the applicable Originator’s Credit and Collection Policy or otherwise with the
prior written consent of the Administrator and the Required Purchaser Agents, unless such
Receivable has been deemed collected pursuant to Section 1.4(a) or repurchased pursuant to the
Receivables Sale Agreement.




(b) No Liens. Cause any of the Receivables or related Contracts, or any inventory or
goods the sale of which give rise to a Receivable, or any Lock-Box or Collection Account or any
right to receive any payments received therein or deposited thereto, to be sold, pledged, assigned
or transferred or to be subject to a Lien, other than the sale and assignment of the Receivable
Interest therein to the Administrator, for the benefit of the Secured Parties, and the Liens
created in connection with the transactions contemplated by this Agreement.




(c) Consolidations, Mergers and Sales of Assets. (i) Consolidate or merge with or into
any other Person or (ii) sell, lease or otherwise transfer all or substantially all of its assets
to any other Person.




(d) No Changes. Make any change in the character of its business, which change would
materially impair the collectibility of any Receivable, without prior written consent of the
Administrator and each Purchaser Agent, or change its name, identity or corporate structure in any
manner which would make any financing statement or continuation statement filed in connection with
this Agreement or the
transactions contemplated hereby seriously misleading within the meaning of Section 9-507(c)
of the UCC of any applicable jurisdiction or other applicable Laws unless it shall have given the
Administrator (which shall promptly forward a copy to each Purchaser Agent) at least 45 days’ prior
written notice thereof and unless prior thereto it shall have caused such financing statement or
continuation statement to be amended or a new financing statement to be filed such that such
financing statement or continuation statement would not be seriously misleading.




(e) Capital Stock. Issue any capital stock except to ABDC. The Seller shall not pay
any dividends to ABDC if such payment would be prohibited under the General Corporation Law of the
State of Delaware.




(f) No Indebtedness. Incur any Indebtedness other than as permitted under this
Agreement.




(g) Change in Payment Instructions to Obligors. Except as may be required by the
Administrator (which shall promptly forward a copy to each Purchaser Agent) pursuant to Section
8.2(b), the Seller will not add or terminate any bank as a Collection Bank, or make any





 


23









 







change in the instructions to Obligors regarding payments to be made to any Lock-Box or Collection
Account, unless (i) the Administrator (which shall promptly forward a copy to each Purchaser Agent)
shall have received, at least ten (10) days before the proposed effective date therefor, (A)
written notice of such addition, termination or change and (B) with respect to the addition of a
Collection Bank or a Collection Account or Lock-Box, an executed Collection Account Agreement
(which is reasonably satisfactory to the Administrator) with respect to the new Collection Account
or Lock-Box, (ii) with respect to the termination of a Collection Bank or a Collection Account or
Lock-Box, the Administrator shall have consented thereto (which consent shall not be unreasonably
withheld and will be provided or withheld within 10 days of request) and (iii) with respect to any
changes in instructions to Obligors regarding payments, the Administrator shall have consented
thereto; provided that the Servicer may make changes in instructions to Obligors regarding payments
if such new instructions require such Obligor to make payments to another existing Lock-Box or
Collection Account.




(h) Use of Proceeds. Seller will not use the proceeds of the Purchases for any purpose
other than (i) paying for Receivables and Related Security under and in accordance with the
Receivables Sale Agreement, including without limitation, making payments on the Subordinated Notes
(as defined in the Receivables Sale Agreement) to the extent permitted thereunder and under the
Receivables Sale Agreement, (ii) making Demand Advances to ABDC at any time prior to the Final
Facility Termination Date while it is acting as Servicer and no Amortization Event or Unmatured
Amortization Event exists and is continuing, (iii) paying its ordinary and necessary operating
expenses when and as due, and (iv) making Restricted Junior Payments to the extent permitted under
this Agreement.




(i) Termination Date Determination. Seller will not designate the Termination Date (as
defined in the Receivables Sale Agreement), or send any written notice to any Originator in respect
thereof, without the prior written consent of the Administrator and each Purchaser Agent, except
with respect to the occurrence of such Termination Date arising pursuant to Section 5.1(e) of the
Receivables Sale Agreement.




(j) Restricted Junior Payments. Seller will not make any Restricted Junior Payment if
after giving effect thereto, Seller’s Net Worth (as defined in the Receivables Sale Agreement)
would be less than the Required Capital Amount (as defined in the Receivables Sale Agreement).




(k) Seller Indebtedness. Seller will not incur or permit to exist any Indebtedness or
liability on account of deposits except: (i) the Aggregate Unpaids, (ii) the Subordinated Loans,
and (iii) other current accounts payable arising in the ordinary course of business and not
overdue.




(l) Prohibition on Additional Negative Pledges. The Seller shall not enter into or
assume any agreement (other than this Agreement and the other Transaction Documents) prohibiting
the creation or assumption of any Lien upon the Purchased Assets except as contemplated by the
Transaction Documents, or otherwise prohibiting or restricting any transaction contemplated hereby
or by the other Transaction Documents, and the Seller shall not enter into or assume any agreement
creating any Lien upon the Subordinated Notes.





 


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Section 7.3 Affirmative Covenants of the Servicer. In addition to its other covenants
contained herein or made pursuant hereto, the Servicer covenants with the Administrator, each
Purchaser Agent and each Purchaser as follows:




(a) Notice of Amortization Event. Promptly upon becoming aware of any Amortization
Event or Unmatured Amortization Event, the Servicer shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) notice thereof, together with a written statement
of a Responsible Officer setting forth the details thereof and any action with respect thereto
taken or contemplated to be taken by such Servicer.




(b) Notice of Material Adverse Change. Promptly upon any Responsible Officer of the
Servicer becoming aware thereof, the Servicer shall give the Administrator (which shall promptly
forward a copy to each Purchaser Agent) notice of any material adverse change in the business,
operations or financial condition of the Servicer which reasonably could affect adversely the
collectibility of the Receivables or the ability of the Servicer to perform its obligations under
this Agreement.




(c) Preservation of Corporate Existence. The Servicer shall preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation,
and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect (i) the interests of the Administrator, any
Purchaser Agent or any Purchaser hereunder or (ii) the ability of such Servicer to perform its
obligations under this Agreement.




(d) Compliance with Laws. The Servicer shall comply in all material respects with all
Laws applicable to the Servicer, its business and properties, and all Receivables related to the
Receivable Interests.




(e) Enforceability of Obligations. The Servicer shall take such actions as are
reasonable and within its power to ensure that, with respect to an applicable Receivable, the
obligation of any related Obligor to pay the unpaid balance of such Receivable in accordance with
the terms of the related Contract remains legal, valid, binding and enforceable against such
Obligor except as otherwise permitted by Section 8.2(d).




(f) Books and Records. The Servicer shall, to the extent practicable, maintain and
implement administrative and operating procedures (including, without limitation, the ability to
recreate Records evidencing the Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, Records and other information reasonably
necessary or advisable for the collection of all applicable Receivables (including, without
limitation, Records adequate to permit the identification of all Related Security and Collections
and adjustments to each existing Receivable). Upon the request of the Administrator or any
Purchaser Agent, following the occurrence of an Amortization Event or an Unmatured Amortization
Event, the Servicer shall deliver to the Administrator all Contracts (including, without
limitation, all multiple originals of any such Contract constituting an instrument, a certificated
security or chattel paper) relating to the Receivables.





 


25









 







(g) Fulfillment of Obligations. The Servicer will duly observe and perform, or cause
to be observed or performed, all material obligations and undertakings on its part or on the part
of any subservicer to be observed and performed under or in connection with the Receivables, will
duly observe and perform all material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Receivables, will do nothing to impair the
rights, title and interest of the Administrator, any Purchaser Agent or any Purchaser in and to the
Receivable Interests and will pay when due any taxes, including without limitation any sales tax,
excise tax or other similar tax or charge, payable in connection with such Receivables and their
creation and satisfaction.




(h) Obligor List. The Servicer shall at all times maintain a current list (which may
be stored on magnetic tapes, computer systems or disks) of all Obligors under Contracts related to
the applicable Receivables, including the name, address, telephone number and account number of
each such Obligor. The list shall be updated as provided in Section 8.5(b) and, the Servicer shall
deliver or cause to be delivered a copy of such list to the Administrator (which shall promptly
forward a copy to each Purchaser Agent) as soon as practicable following the Administrator’s
request (but not more frequently than once each calendar quarter unless an Amortization Event or
Unmatured Amortization Event has occurred and is continuing).




(i) Total Systems Failure. The Servicer shall promptly notify the Administrator (which
shall promptly forward a copy to each Purchaser Agent) of any total systems failure and shall
advise the Administrator of the estimated time required to remedy such total systems failure and of
the estimated date on which a Settlement Report can be delivered. Until a total systems failure is
remedied, the Servicer (i) will furnish to the Administrator (which shall promptly forward a copy
to each Purchaser Agent) such periodic status reports and other information relating to such total
systems failure as the Administrator or any Purchaser Agent may reasonably request and (ii) will
promptly notify the Administrator (which shall promptly forward a copy to each Purchaser Agent) if
the Servicer believes that such total systems failure cannot be remedied by the estimated date,
which notice shall include a description of the circumstances which gave rise to such delay, the
action proposed to be taken in response thereto, and a revised estimate of the date on which the
information required for a Settlement Report can be delivered. The Servicer shall promptly notify
the Administrator (which shall promptly forward a copy to each Purchaser Agent) when a total
systems failure has been remedied.




(j) Notice of Relocation. The Servicer shall give the Administrator (which shall
promptly forward a copy to each Purchaser Agent) 45 days’ prior written notice of any relocation of
its Location. The Servicer will at all times maintain its Location within a jurisdiction in the
United States in which Article 9 of the UCC is in effect as of the date hereof or the date of any
such relocation.




(k) Administrative and Operating Procedures. The Servicer shall maintain and implement
administrative and operating procedures adequate to permit the identification of the applicable
Receivables and all collections and adjustments attributable thereto and shall comply in all
material respects with the Applicable Originator’s Credit and Collection Policy in regard to each
applicable Receivable and related Contract.




(l) Modification of Systems. The Servicer agrees, promptly after the replacement or
any material modification of any computer, automation or other operating





 


26









 







systems (in respect of hardware or software) used to perform its services as Servicer or to make
any calculations or reports hereunder, to give notice of any such replacement or modification to
the Administrator (which shall promptly forward a copy to each Purchaser Agent).




(m) Litigation. As soon as possible, and in any event within ten (10) Business Days of
the Servicer’s knowledge thereof, the Servicer shall give the Administrator (which shall promptly
forward a copy to each Purchaser Agent) notice of (i) any litigation, investigation or proceeding
against the Servicer which may exist at any time which, in the reasonable judgment of the Servicer
could materially impair the ability of the Servicer to perform its obligations under this Agreement
and (ii) any material adverse development in any such previously disclosed litigation.




(n) ERISA Events. Promptly upon becoming aware of the occurrence or likely occurrence
of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of Performance Guarantor and its ERISA Affiliates in
an aggregate amount exceeding $25,000,000. Performance Guarantor shall give the Seller a written
notice specifying the nature thereof, what action Performance Guarantor or any ERISA Affiliate has
taken and, when known, any action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto.




(o) Separate Corporate Existence. As long as ABDC is the Servicer hereunder, the
Servicer shall maintain its legal identity separate from the Seller and take such action to ensure
that: (A) the management of the Servicer does not anticipate any need for its having to extend
advances to the Seller except for those described in the Transaction Documents, if any; (B) the
Servicer does not conduct its business in the name of the Seller; (C) the Servicer has a telephone
number, stationery and business forms separate from those of the Seller; (D) the Servicer does not
provide for its expenses and liabilities from the funds of the Seller; (E) the Servicer is not
liable for the payment of any liability of the Seller; (F) neither the assets nor the
creditworthiness of the Servicer is held out as being available for the payment of any liability of
the Seller; (G) the Servicer maintains an arm’s-length relationship with the Seller; and (H) assets
are not transferred from the Servicer to the Seller without fair consideration or with the intent
to hinder, delay or defraud the creditors of either company.




(p) Audits. At any time, upon reasonable notice to the Servicer (but not more than
twice per calendar year unless an Amortization Event or Unmatured Amortization Event has occurred),
the Servicer shall permit the Administrator, together with each Purchaser Agent that wants to
participate, or such Person as they may designate, during business hours, to conduct audits or
visit and inspect any of the properties of the Servicer to examine the Records, internal controls
and procedures maintained by the Servicer and take copies and extracts therefrom, and to discuss
the Servicer’s affairs with its officers, employees and independent accountants. The Servicer
hereby authorizes such officers, employees and independent accountants to discuss with the
Administrator and each Purchaser Agent, or such Person as they may designate, the affairs of the
Servicer. The Seller shall reimburse the Administrator and each Purchaser Agent for all reasonable
fees, costs and out-of-pocket expenses incurred by or on behalf of the Administrator and each
Purchaser Agent in connection with up to two (2) such audits and visits for each per calendar year
promptly upon receipt of a written invoice therefor; provided that, following the occurrence of an
Amortization Event or an Unmatured Amortization Event, the Seller shall reimburse the Administrator
and each Purchaser Agent for all reasonable fees, costs and out of





 


27









 







pocket expenses incurred by or on behalf of the Administrator and each Purchaser Agent in
connection with the foregoing actions promptly upon receipt of written invoice therefor regardless
of the number of audits or visits in such year. Subject to the requirements of applicable laws, the
Administrator and each Purchaser Agent agrees to use commercially reasonable precautions to keep
confidential, in accordance with its respective customary procedures for handling confidential
information, any non-public information supplied to it by the Servicer pursuant to any such audit
or visit which is identified by the Servicer as being confidential at the time the same is
delivered to the Administrator and each Purchaser Agent.




(q) S.E.C. Filings. Promptly upon the written request of the Administrator or
any Purchaser Agent, provide to the Administrator (which shall promptly forward a copy to each
Purchaser Agent) copies
of all registration statements and annual, quarterly, monthly or other regular reports which
Seller or Servicer files with the Securities and Exchange Commission.




(r) Notices. Servicer will notify the Administrator (which shall promptly forward a
copy to each Purchaser Agent) in writing of any of the following promptly upon learning of the
occurrence thereof, describing the same and, if applicable, the steps being taken with respect
thereto:





(i) Judgments and Proceedings. (A) (1) The entry of any judgment or decree
against Performance Guarantor, the Servicer or any of their respective Subsidiaries if the
aggregate amount of all judgments and decrees then outstanding against Performance Guarantor,
the Servicer and their respective Subsidiaries exceeds $25,000,000 after deducting (a) the
amount with respect to which Performance Guarantor, the Servicer or any such Subsidiary, as
the case may be, is insured and with respect to which the insurer has assumed responsibility
in writing, and (b) the amount for which Performance Guarantor, the Servicer or any such
Subsidiary is otherwise indemnified if the terms of such indemnification are satisfactory to
the Administrator and the Required Purchaser Agents, and (2) the institution of any
litigation, arbitration proceeding or governmental proceeding against Performance Guarantor or
the Servicer; and (B) the entry of any judgment or decree or the institution of any
litigation, arbitration proceeding or governmental proceeding against Seller.





(ii) Termination Date. The occurrence of the “Termination Date” under and as
defined in the Receivables Sale Agreement.





(iii) Defaults Under Other Agreements. For the Servicer, the occurrence of a
default or an event of default in respect of a financing arrangement for an aggregate
principal amount exceeding $25,000,000. For the Seller, the occurrence of a default or an
event of default in respect of a financing arrangement for an aggregate principal amount
exceeding $11,625.





(iv) Notices under Receivables Sale Agreement. Copies of all notices to be
delivered under the Receivables Sale Agreement.




(s) Rebate Reserves. Servicer shall determine the Rebate Reserve in accordance with
the definition thereof and in a manner consistent with its practice in effect on the date hereof
and report the Rebate Reserve in each Settlement Report.





 


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(t) Accounting Certificate. The Servicer shall deliver, or cause to be delivered, the
certificate described in Section 5.3(k).




(u) Financial Statements. In the event that (i) the balance sheet and/or the
statements of income and cash flow (as described in Section 5.3(k)) of AmerisourceBergen and its
Consolidated Subsidiaries are no longer publicly available or (ii) the Credit Agreement has been
terminated, AmerisourceBergen shall, within 90 or 120 days of the end of the applicable quarter or
Fiscal Year, respectively, provide copies of such balance sheet and/or statements of income and
cash flow to the Administrator (which shall promptly forward a copy to each Purchaser Agent).




Section 7.4 Negative Covenants of the Servicer. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and the Agreement terminates in accordance with its
terms, the Servicer hereby covenants, as to itself, that it will not:




(a) No Rescissions or Modifications. Rescind or cancel any Receivable or related
Contract or modify any terms or provisions thereof or grant any Dilution to an Obligor, except in
accordance with the applicable Originator’s Credit and Collection Policy or otherwise with the
prior written consent of the
Administrator and the Required Purchaser Agents, unless such Receivable has been deemed
collected pursuant to Section 1.4(a) or repurchased pursuant to the Receivables Sale Agreement.




(b) No Liens. Cause any of the applicable Receivables or related Contracts, or any
inventory or goods the sale of which may give rise to a Receivable or any Collection Account or any
right to receive any payments received therein or deposited thereto, to be sold, pledged, assigned
or transferred or to be subject to a Lien, other than (i) the sale and assignment of the
Receivables Interest to the Administrator, for the benefit of Secured Parties, (ii) the Liens
created in connection with the transactions contemplated by this Agreement or (iii) Liens in
respect of a Receivable which has been deemed collected pursuant to Section 1.4(a) or repurchased
pursuant to the Receivables Sale Agreement, and for which payment has been received.




(c) No Changes. Make any material change in its Credit and Collection Policy, allow
any material change to be made in the Applicable Originator’s Credit and Collection Policy or
consent to any material change in the Applicable Originator’s Credit and Collection Policy without
prior written consent of the Administrator and each Purchaser Agent (and the Servicer shall provide
notice of any change (unless de minimis) in its or any Originator’s Credit and Collection Policy at
least five (5) Business Days prior to the effective date of such change), or change its name,
identity or corporate structure in any manner which would make any financing statement or
continuation statement filed in connection with this Agreement or the transactions contemplated
hereby seriously misleading within the meaning of Section 9.507(c) of the UCC of any applicable
jurisdiction or other applicable Laws unless it shall have given the Administrator (which shall
promptly forward a copy to each Purchaser Agent) at least 45 days’ prior written notice thereof and
unless prior thereto it shall have caused such financing statement or continuation statement to be
amended or a new financing statement to be filed such that such financing statement or continuation
statement would not be seriously misleading.





 


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(d) Consolidations, Mergers and Sales of Assets. (i) Consolidate or merge with or into
any other Person or (ii) sell, lease or otherwise transfer all or substantially all of its assets
to any other Person; provided that the Servicer may merge with another Person if (A) the Servicer
is the corporation surviving such merger and (B) immediately after giving effect to such merger, no
Amortization Event or Unmatured Amortization Event shall have occurred and be continuing.




(e) Change in Payment Instructions to Obligors. Except as may be required by the
Administrator pursuant to Section 8.2(b), the Servicer will not add or terminate any bank as a
Collection Bank, or make any change in the instructions to Obligors regarding payments to be made
to any Lock-Box or Collection Account, unless (i) the Administrator (which shall promptly forward a
copy to each Purchaser Agent) shall have received, at least ten (10) days before the proposed
effective date therefor, (A) written notice of such addition, termination or change and (B) with
respect to the addition of a Collection Bank or a Collection Account or Lock-Box, an executed
Collection Account Agreement (which is reasonably satisfactory to the Administrator) with respect
to the new Collection Account or Lock-Box, (ii) with respect to the termination of a Collection
Bank or a Collection Account or Lock-Box, the Administrator shall have consented thereto (which
consent shall not be unreasonably withheld and will be provided or withheld within 10 days of
request) and (iii) with respect to any changes in instructions to Obligors regarding payments, the
Administrator shall have consented thereto; provided that the Servicer may make changes in
instructions to Obligors regarding payments if such new instructions require such Obligor to make
payments to another existing Lock-Box or Collection Account.




(f) Prohibition on Additional Negative Pledges. The Servicer shall not enter into or
assume any agreement (other than this Agreement and the other Transaction Documents) prohibiting
the creation or assumption of any Lien upon the Purchased Assets or otherwise prohibiting or
restricting any transaction contemplated hereby or by the other Transaction Documents, and the
Servicer shall not enter into or assume any agreement creating any Lien upon the Subordinated
Notes.




ARTICLE VIII.




ADMINISTRATION AND COLLECTION





Section 8.1 Designation of Servicer.




(a) The servicing, administration and collection of the Receivables shall be conducted by such
Person (the “Servicer”) so designated from time to time in accordance with this Section 8.1. ABDC
is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer
pursuant to the terms of this Agreement. The Required Purchaser Agents may at any time following
the occurrence of an Amortization Event designate as Servicer any Person to succeed ABDC or any
successor Servicer; provided that the Rating Agency Condition is satisfied.




(b) ABDC may delegate, and ABDC hereby advises the Administrator, each Purchaser Agent and
each Purchaser that it has delegated, to the other Originators, as sub-servicers of the Servicer,
certain of its duties and responsibilities as Servicer hereunder in respect





 


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of the Receivables originated by such other Originator. Without the prior written consent of the
Required Purchaser Agents (which consent shall not be unreasonably withheld), ABDC shall not be
permitted to delegate any of its duties or responsibilities as Servicer to any Person other than
(i) Seller, (ii) the other Originators, and (iii) with respect to certain Defaulted Receivables,
outside collection agencies in accordance with its customary practices. Neither Seller nor any
Originator shall be permitted to further delegate to any other Person any of the duties or
responsibilities of the Servicer delegated to it by ABDC. If at any time the Required Purchaser
Agents shall designate as Servicer any Person other than ABDC, all duties and responsibilities
theretofore delegated by ABDC to Seller or the other Originators may, at the discretion of the
Required Purchaser Agents, be terminated forthwith on notice given by the Required Purchaser Agents
to ABDC and to Seller and the other Originators.




(c) Notwithstanding the foregoing subsection (b): (i) ABDC shall be and remain primarily
liable to the Administrator, each Purchaser Agent and each Purchaser for the full and prompt
performance of all duties and responsibilities of the Servicer hereunder and (ii) the
Administrator, each Purchaser Agent and each Purchaser shall be entitled to deal exclusively with
ABDC in matters relating to the discharge by the Servicer of its duties and responsibilities
hereunder. The Administrator, each Purchaser Agent and each Purchaser shall not be required to give
notice, demand or other communication to any Person other than ABDC in order for communication to
the Servicer and its sub-servicer or other delegate with respect thereto to be accomplished. ABDC,
at all times that it is the Servicer, shall be responsible for providing any sub-servicer or other
delegate of the Servicer with any notice given to the Servicer under this Agreement.





Section 8.2 Duties of Servicer.




(a) The Servicer shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and in accordance with the Credit and
Collection Policy.




(b) The Servicer will instruct all Obligors to pay all Collections directly to a Lock-Box or
Collection Account. The Servicer shall (on or prior to September 30, 2003 with respect to each
Collection Account listed on Exhibit IV on the date hereof) effect a Collection Account Agreement
substantially in the form of Exhibit VI, or if an existing collection account agreement is in
place, an amendment and assignment in the form of Exhibit XVII (in each case, with such other
changes as the Administrator may otherwise consent), with each bank party to a Collection Account
at any time. In the case of any remittances received in any Lock-Box or Collection Account that
shall have been identified, to the
satisfaction of the Servicer, to not constitute Collections or other proceeds of the
Receivables or the Related Security, the Servicer shall promptly remit such items to the Person
identified to it as being the owner of such remittances. From and after the date the Administrator
delivers to any Collection Bank a Collection Notice pursuant to Section 8.3, the Administrator may
request that the Servicer, and the Servicer thereupon promptly shall instruct all Obligors with
respect to the Receivables, to remit all payments thereon to a new depositary account specified by
the Administrator and, at all times thereafter, Seller and the Servicer shall not deposit or
otherwise credit, and shall not permit any other Person to deposit or otherwise credit to such new
depositary account any cash or payment item other than Collections.





 


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(c) The Servicer shall administer the Collections in accordance with the procedures described
herein. The Servicer shall set aside and hold in trust for the account of Seller and each Purchaser
their respective shares of the Collections in accordance with Article II. The Servicer shall, upon
the request of the Administrator or any Purchaser Agent and after an Amortization Event or
Unmatured Amortization Event, segregate, in a manner acceptable to the Administrator and each
Purchaser Agent, all cash, checks and other instruments received by it from time to time
constituting Collections from the general funds of the Servicer or Seller prior to the remittance
thereof in accordance with Article II. If the Servicer shall be required to segregate Collections
pursuant to the preceding sentence, the Servicer shall segregate and deposit with a bank designated
by the Administrator such allocable share of Collections of Receivables set aside for each
Purchaser on the first Business Day following receipt by the Servicer of such Collections, duly
endorsed or with duly executed instruments of transfer.




(d) The Servicer may, in accordance with the Credit and Collection Policy, extend the maturity
of any Receivable or adjust the Outstanding Balance of any Receivable as the Servicer determines to
be appropriate to maximize Collections thereof; provided that such extension or adjustment shall
not alter the status of such Receivable as a Delinquent Receivable or Defaulted Receivable or limit
the rights of the Administrator, any Purchaser Agent or any Purchaser under this Agreement.
Notwithstanding anything to the contrary contained herein, the Required Purchaser Agents shall have
the absolute and unlimited right to direct the Servicer to commence or settle any legal action with
respect to any Receivable or to foreclose upon or repossess any Related Security.




(e) The Servicer shall hold in trust for Seller and the Administrator, each Purchaser Agent
and each Purchaser all Records that (i) evidence or relate to the Receivables, the related
Contracts and Related Security or (ii) are otherwise necessary or desirable to collect the
Receivables and shall, as soon as practicable upon demand of the Administrator or any Purchaser
Agent, deliver or make available to the Administrator and each Purchaser Agent all such Records, at
a place selected by the Administrator. The Servicer shall, as soon as practicable following receipt
thereof turn over to Seller any cash collections or other cash proceeds received with respect to
Indebtedness not constituting Receivables. The Servicer shall, from time to time at the request of
the Administrator or any Purchaser Agent, furnish to the Administrator and each Purchaser Agent
(promptly after any such request) a calculation of the amounts set aside for each Purchaser
pursuant to Article II.




(f) Any payment by an Obligor in respect of any indebtedness owed by it to Originator or
Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or
law and unless otherwise instructed by the Required Purchaser Agents, be applied as a Collection of
any Receivable of such Obligor (starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any other receivable or other
obligation of such Obligor.




Section 8.3 Collection Notices. The Administrator is authorized at any time after the
occurrence of an Amortization Event or an Unmatured Amortization Event to date and to deliver to
the Collection Banks the Collection Notices. Seller hereby transfers to the Administrator for the
benefit of the Secured Parties, effective when the Administrator delivers such notice, the
exclusive ownership and control of each Lock-Box and the Collection Accounts and, in connection
therewith, agrees to cause each Collection Bank to modify the name on each Lock-





 


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Box and Collection Account as requested by the Administrator. In case any authorized signatory of
Seller whose signature appears on a Collection Account Agreement shall cease to have such authority
before the delivery of such notice, such Collection Notice shall nevertheless be valid as if such
authority had remained in force. Seller hereby authorizes the Administrator, and agrees that the
Administrator shall be entitled (i) at any time after delivery of the Collection Notices, to
endorse Seller’s name on checks and other instruments representing Collections, (ii) at any time
after the occurrence of an Amortization Event, to enforce the Receivables, the related Contracts
and the Related Security, and (iii) at any time after the occurrence of an Amortization Event, to
take such action as shall be reasonably necessary or desirable to cause all cash, checks and other
instruments constituting Collections of Receivables to come into the possession of the
Administrator rather than Seller.




Section 8.4 Responsibilities of Seller. Anything herein to the contrary
notwithstanding, the exercise by the Administrator, on behalf of Secured Parties, of the
Administrator’s rights hereunder shall not release the Servicer, any Originator or Seller from any
of their duties or obligations with respect to any Receivables or under the related Contracts. The
Administrator, each Purchaser Agent and each Purchaser shall have no obligation or liability with
respect to any Receivables or related Contracts, nor shall any of them be obligated to perform the
obligations of Seller or any Originator thereunder.





Section 8.5 Settlement Reports.




(a) The Servicer shall prepare and forward to the Administrator (with an electronic copy to
each Purchaser Agent) (i) on each Settlement Reporting Date, a Settlement Report (certified by an
Authorized Officer of the Servicer) and an electronic file of the data contained therein and (ii)
at such times as the Administrator or any Purchaser Agent shall request, a listing by Obligor of
all Receivables together with an aging of such Receivables; provided that, if an Amortization Event
or an Unmatured Amortization Event shall exist and be continuing, the Administrator or any
Purchaser Agent may request that the Servicer deliver a Settlement Report more frequently than
monthly but not more frequently than weekly unless an Amortization Event or Unmatured Amortization
Event has occurred and is continuing.




(b) Upon the request of the Administrator or any Purchaser Agent (but not more frequently than
every quarter), the Servicer shall provide in writing to the Administrator (which shall promptly
forward a copy to each Purchaser Agent) the list of Obligors under Contracts related to the
Receivables including, for each Obligor added to the list, the name, address, telephone number and
account number of such Obligor and if there have been changes in the name, address, telephone
number or account number of any existing Obligor, the revisions shall be provided.




Section 8.6 Servicing Fee. As compensation for the Servicer’s servicing activities on
their behalf, the Servicer shall be paid the Servicing Fee in arrears on each Settlement Date out
of Collections.





 


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ARTICLE IX.




AMORTIZATION EVENTS




Section 9.1 Amortization Events. The occurrence of any one or more of the following
events shall constitute an Amortization Event:




(a) the Seller or the Servicer shall fail to remit or fail to cause to be remitted to the
Administrator, any Purchaser Agent or any Purchaser on any day any Collections, including any
amounts to
be remitted to reduce the Invested Amount or any portion thereof, or interest or fees set
forth in any Fee Letter and required to be remitted to the Administrator, any Purchaser Agent or
any Purchaser on such day, and with respect to failure to remit interest or any such fees, such
failure shall continue for two Business Days after the date on which such interest or fees becomes
due; or




(b) the Seller or the Servicer shall fail to deposit, or pay or fail to cause to be deposited
or paid when due any other amount due hereunder or shall fail to deliver any Settlement Report and
such failure shall continue for two (2) Business Days after the date when such amount or Settlement
Report became due; or




(c) any representation, warranty, certification or statement made by the Seller or the
Servicer under this Agreement or in any agreement, certificate, report, appendix, schedule or
document furnished by the Seller or the Servicer to the Administrator, any Purchaser Agent or any
Purchaser pursuant to or in connection with this Agreement shall prove to have been false or
misleading in any respect material to this Agreement or the transactions contemplated hereby as of
the time made or deemed made (including by omission of material information necessary to make such
representation, warranty, certification or statement not misleading) and which continues to be
false or misleading in any material respect for a period of ten (10) Business Days after either (i)
any Responsible Officer of the Seller or the Servicer becomes aware thereof or (ii) notice thereof
to such Person by the Administrator, any Purchaser Agent or any Purchaser; or





(d) a Change in Control shall occur with respect to the Performance Guarantor; or




(e) except as otherwise provided in this Section 9.1, the Seller or the Servicer shall default
or fail in the performance or observance of any other covenant, agreement or duty applicable to it
contained herein and such default or failure shall continue for ten (10) Business Days after either
(i) any Responsible Officer of the Seller or the Servicer becomes aware thereof or (ii) notice
thereof to such Person by the Administrator, any Purchaser Agent or any Purchaser; or




(f) the Seller shall fail to pay any Indebtedness when due and such failure shall continue
beyond the applicable grace period, if any, specified in the agreement or instrument relating to
such Indebtedness; or AmerisourceBergen or any of its Consolidated Subsidiaries (other than the
Seller, if applicable) shall fail to pay any Indebtedness in excess of $25,000,000 of
AmerisourceBergen or any of its Consolidated Subsidiaries, as the case may be, or any interest or
premium on such Indebtedness, in either case, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall





 


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continue after the applicable grace period, if any, specified in the agreement or instrument
relating to such Indebtedness; or any other default under any agreement or instrument relating to
any such Indebtedness or any other event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument if the effect of such default or event is
to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or a final
court decision of $25,000,000 or more shall be rendered against AmerisourceBergen or any of its
Consolidated Subsidiaries and (i) such amount remains unpaid and (ii) AmerisourceBergen or the
relevant Consolidated Subsidiary does not, in good faith, contest such decision within the relevant
statutory period; or




(g) the average of the Default Ratios, computed for each of the immediately preceding three
months, shall exceed 0.50%; or the average of the Dilution Ratios, computed for each of the
immediately preceding three months, shall exceed 5.25%; or the average of the Delinquency Ratios,
computed for each of the immediately preceding three months, shall exceed 2.50%; or the Days Sales
Outstanding for any month shall exceed 30 days; or




(h) (i) a Collection Bank shall default or fail in the performance or observance of any
agreement or duty applicable to it in respect of any Collection Account, and (A) the Servicer has
not notified the Administrator (which shall promptly forward a copy to each Purchaser Agent),
within two (2) Business Days after becoming aware of such continuing default or failure, of the
action it intends to take to cure such default or failure or (B) if so requested by the
Administrator, any Purchaser Agent or any Purchaser, the Seller has not established, within fifteen
(15) Business Days of such default or failure, another Collection Account with a Collection Bank
agreed upon by the Seller and the Administrator, or (ii) the Seller or the Servicer shall default
or fail in the performance or observance of any covenant, agreement or duty set forth in Sections
8.2 or 8.3 hereof which is within the control of the Seller or the Servicer, as the case may be,
and such default or failure shall continue for two (2) Business Days after notice thereof; or




(i) there shall be pending any litigation, investigation or proceeding, or any material
adverse development in any such litigation shall have occurred, which the Seller or the Servicer is
required to disclose pursuant to Section 7.1(i) or Section 7.3(m), respectively, hereof, which in
the reasonable opinion of the Administrator, any Purchaser Agent or any Purchaser is likely to
materially adversely affect the financial position or results of operations of the Seller or the
Servicer or impair the ability of the Seller or the Servicer to perform its respective obligations
under this Agreement; or




(j) there shall have occurred any event which could have a material adverse effect on (i) the
ability of any Seller Party, any Originator or the Performance Guarantor to perform its obligations
under any Transaction Document, (ii) the legality, validity or enforceability of any Transaction
Document, (iii) the Administrator’s security interest in the Receivables generally or in any
significant portion of the Receivables or the proceeds thereof, or (iv) the collectibility of the
Receivables generally or of any material portion of the Receivables; or




(k) an Event of Bankruptcy shall occur with respect to the Seller, the Servicer, any
Originator or the Performance Guarantor; or





 


35









 








(l) the Aggregate Invested Amount shall exceed the Purchase Limit; or




(m) the Net Pool Balance shall at any time be less than an amount equal to the sum of (i) the
Aggregate Invested Amount plus (ii) the Required Reserve; or




(n) ABDC is replaced as Servicer pursuant to Section 8.1(a) or otherwise resigns as Servicer;
or




(o) AmerisourceBergen shall default or fail in the performance or observance of any of the
covenants set forth in Section 6.12, 6.13. 6.14 or 6.15 of the Credit Agreement as in effect on the
date hereof (without giving effect to any amendment, waiver, termination, supplement or other
modification thereof unless consented to by the Required Purchaser Agents); or





(p) a final court decision for $11,625 or more shall be rendered against the Seller; or




(q) ABDC shall cease to own 100% of the capital stock of the Seller or the Performance
Guarantor shall cease to own (directly or indirectly) 100% of the capital stock of each Originator;
or




(r) ABDC shall (i) consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer all or substantially all of its assets to any other Person unless ABDC is the
survivor of such transaction; or




(s) (i) the definition of “Collateral and Guarantee Requirement” (clause (b)(ii) thereof),
“Excluded Subsidiary” (clause (c) thereof), “Loan Party,” “Proceeds,” “Securitization,”
“Securitization Entity,” or “Subsidiary Loan Party” contained in the Credit Agreement is amended,
modified or waived without the prior written consent of the Administrator and the Required
Purchaser Agents; (ii) Section 6.01(a)(iv), 6.01(a)(v), 6.01(a)(viii), 6.02(f), 6.02(g), 6.04(d),
6.04(e), 6.04(f), 6.05(b), 6.05(c), 6.08(a)(ii), 6.08(b)(ii), 6.09(b), 6.09(c), 6.09(d), 6.10
(clause (i) of the first proviso thereto) or 6.11 (clause (b) of the first sentence hereof) of the
Credit Agreement is amended, modified or waived without the prior written consent of the
Administrator and the Required Purchaser Agents; (iii) Section 1 (clause (ii) of the proviso to
clause (a) thereof and the parenthetical phrases in clause (b)(ii) thereof) of the Pledge Agreement
is amended, modified or waived without the prior written consent of the Administrator and the
Required Purchaser Agents; (iv) the definition of “Collateral” (the proviso thereto), “General
Intangibles” (the first parenthetical thereof), “Inventory,” “Investment Property,” “New York UCC,”
“Proceeds” or “Securities” contained in the Security Agreement is amended, modified or waived
without the prior written consent of the Administrator and the Required Purchaser Agents; or (v)
any other provision of (including by the addition of a provision) the Credit Agreement, the
Security Agreement or the Pledge Agreement is amended, modified or waived without the prior written
consent of the Administrator and the Required Purchaser Agents in any way which could materially
and adversely impair the interests of the Administrator, any Purchaser Agent or any Purchaser in
the Receivables, Related Security or Collections or could result in the creation of a Lien thereon;
or




(t) the Performance Guarantor shall default or fail in the performance of any covenant or
agreement set forth in the Performance Guaranty; or





 


36









 







(u) the “Termination Date” under and as defined in the Receivables Sale Agreement shall occur
under the Receivables Sale Agreement or any Originator shall for any reason cease to transfer, or
cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables
to Seller under the Receivables Sale Agreement; or




(v) this Agreement shall terminate in whole or in part (except in accordance with its terms),
or shall cease to be effective or to be the legally valid, binding and enforceable obligation of
Seller, or any Obligor shall directly or indirectly contest in any manner such effectiveness,
validity, binding nature or enforceability, or the Administrator (for the benefit of Secured
Parties) shall cease to have a valid and perfected first priority security interest in the
Purchased Assets; or




(w) the Performance Undertaking shall cease to be effective or to be the legally valid,
binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall
directly or indirectly contest in any manner such effectiveness, validity, binding nature or
enforceability of its obligations thereunder; or




(x) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the
Internal Revenue Code with regard to any of the Purchased Assets or any assets of the Seller,
Performance Guarantor or any Affiliate and such lien shall not have been released within seven (7)
days, or the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to
Section 4068 of ERISA with regard to any of the Purchased Assets; or




(y) An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of Performance Guarantor or any of
its ERISA Affiliates under the Internal Revenue Code or Title IV of ERISA to such Pension Plan,
such Multiemployer Plan or the PBGC in an aggregate amount in excess of $25,000,000.




Section 9.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Administrator may, or upon the direction of any Purchaser Agent shall, take
any of the following
actions: (i) replace the Person then acting as Servicer (ii) declare the Facility Termination
Date for all Purchaser Groups to have occurred, whereupon Reinvestments shall immediately terminate
and the Final Facility Termination Date shall forthwith occur, all without demand, protest or
further notice of any kind, all of which are hereby expressly waived by each Seller Party; provided
that, upon the occurrence of an Event of Bankruptcy with respect to any Seller Party, the Facility
Termination Date for all Purchaser Groups shall automatically occur, without demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Seller Party, (iii) deliver
the Collection Notices to the Collection Banks, (iv) exercise all rights and remedies of a secured
party upon default under the UCC and other applicable laws, and (v) notify Obligors of the
Administrator’s security interest in the Receivables and other Purchased Assets. The aforementioned
rights and remedies shall be without limitation, and shall be in addition to all other rights and
remedies of the Administrator, each Purchaser Agent and each Purchaser otherwise available under
any other provision of this Agreement, by operation of law, at equity or otherwise, all of which
are hereby expressly preserved, including, without limitation, all rights and remedies provided
under the UCC, all of which rights shall be cumulative.





 


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ARTICLE X.




INDEMNIFICATION




Section 10.1 Indemnities by the Seller Parties. Without limiting any other rights that
the Administrator, any Purchaser Agent, any Purchaser or any Funding Source may have hereunder or
under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the
Administrator, each Purchaser Agent, each Purchaser, each Funding Source and each of the respective
assigns, officers, directors, Administrators and employees of the foregoing (each, an “Indemnified
Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses
and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be
employees of any Indemnified Party) and disbursements (all of the foregoing being collectively
referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or
as a result of this Agreement or the acquisition, either directly or indirectly, by any Indemnified
Party of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay
upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any
of them arising out of the Servicer’s activities as Servicer hereunder; excluding, however, in all
of the foregoing instances under the preceding clauses (A) and (B):





(a) Indemnified Amounts to the extent a final judgment of a court of competent
jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful
misconduct on the part of the Indemnified Party seeking indemnification;





(b) Indemnified Amounts to the extent the same results from losses in respect of
Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; or





(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal
executive office is located, on or measured by the overall net income of such Indemnified
Party to the extent that the computation of such taxes is consistent with the characterization
for income tax purposes of the acquisition by any Purchaser of Receivables as a loan or loans
by any Purchaser to Seller secured by the Receivables, the Related Security, the Collection
Accounts and the Collections;



provided that nothing contained in this sentence shall limit the liability of any Seller Party or
limit the recourse of any Indemnified Party to any Seller Party for amounts otherwise specifically
provided to be paid by such Seller Party under the terms of this Agreement. Without limiting the
generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for
Indemnified Amounts
(including, without limitation, losses in respect of uncollectible receivables, regardless of
whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or
resulting from:





(i) any representation or warranty made by any Seller Party or any Originator (or any
officers of any such Person) under or in connection with this Agreement, any other Transaction
Document or any other information or report delivered by any such Person pursuant hereto or
thereto, which shall have been false or incorrect when made or deemed made;





 


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(ii) the failure by Seller, the Servicer or any Originator to comply with any applicable
law, rule or regulation with respect to any Receivable or Contract related thereto, or the
nonconformity of any Receivable or Contract included therein with any such applicable law,
rule or regulation or any failure of any Originator to keep or perform any of its obligations,
express or implied, with respect to any Contract;





(iii) any failure of Seller, the Servicer or any Originator to perform its duties,
covenants or other obligations in accordance with the provisions of this Agreement or any
other Transaction Document;





(iv) any products liability, personal injury or damage suit, or other similar claim
arising out of or in connection with merchandise, insurance or services that are the subject
of any Contract or any Receivable;





(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a
defense based on such Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms), or any other
claim resulting from the sale of the merchandise or service related to such Receivable or the
furnishing or failure to furnish such merchandise or services;





(vi) the commingling of Collections of Receivables at any time with other funds;





(vii) any investigation, litigation or proceeding related to or arising from this
Agreement or any other Transaction Document, the transactions contemplated hereby, the use of
the proceeds of any Purchase, the Purchased Assets or any other investigation, litigation or
proceeding relating to Seller, the Servicer or any Originator in which any Indemnified Party
becomes involved as a result of any of the transactions contemplated hereby;





(viii) any inability to litigate any claim against any Obligor in respect of any
Receivable as a result of such Obligor being immune from civil and commercial law and suit on
the grounds of sovereignty or otherwise from any legal action, suit or proceeding;





(ix) any Amortization Event of the type described in Section 9.1(k);





(x) any failure of Seller to acquire and maintain legal and equitable title to, and
ownership of any of the Purchased Assets from the applicable Originator, free and clear of any
Lien (other than as created hereunder); or any failure of Seller to give reasonably equivalent
value to any Originator under the Receivables Sale Agreement in consideration of the transfer
by such Originator of any Receivable, or any attempt by any Person to void such transfer under
statutory provisions or common law or equitable action;






 


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(xi) any failure to vest and maintain vested in the Administrator for the benefit of the
Secured Parties, or to transfer to the Administrator for the benefit of the Secured Parties, a
valid first priority perfected security interests in the Purchased Assets, free and clear of
any Lien (except as created by the Transaction Documents);





(xii) the failure to have filed, or any delay in filing, financing statements or other
similar instruments or documents under the UCC of any applicable jurisdiction or other
applicable laws with respect to any Purchased Assets, and the proceeds thereof, whether at the
time of any Purchase or at any subsequent time;





(xiii) any action or omission by any Seller Party which reduces or impairs the rights of
any Indemnified Party Portion with respect to any Purchased Assets or the value of any
Purchased Assets;





(xiv) any attempt by any Person to void any Purchase or the Administrator’s security
interest in the Purchased Assets under statutory provisions or common law or equitable action;
and





(xv) the failure of any Receivable included in the calculation of the Net Pool Balance as
an Eligible Receivable to be an Eligible Receivable at the time so included.




Section 10.2 Increased Cost and Reduced Return. If after the date hereof, any
Regulatory Change shall occur: (i) that subjects any Funding Source to any charge or withholding on
or with respect to any Funding Agreement or a Funding Source’s obligations under a Funding
Agreement, or on or with respect to the Receivables, or changes the basis of taxation of payments
to any Funding Source of any amounts payable under any Funding Agreement (except for changes in the
rate of tax on the overall net income of a Funding Source or taxes excluded by Section 10.1) or
(ii) that imposes, modifies or deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the account of a Funding
Source, or credit extended by a Funding Source pursuant to a Funding Agreement or (iii) that
imposes any other condition the result of which is to increase the cost to a Funding Source of
performing its obligations under a Funding Agreement, or to reduce the rate of return on a Funding
Source’s capital as a consequence of its obligations under a Funding Agreement, or to reduce the
amount of any sum received or receivable by a Funding Source under a Funding Agreement or to
require any payment calculated by reference to the amount of interests or loans held or interest
received by it, then, upon demand by the applicable Purchaser Agent, Seller shall pay to such
Purchaser Agent, for the benefit of the relevant Funding Source, such amounts charged to such
Funding Source or such amounts to otherwise compensate such Funding Source for such increased cost
or such reduction (subject to any limitations specifically with respect to this Section 10.2 set
forth in the Fee Letters). For the avoidance of doubt, if the issuance of FASB Interpretation No.
46, or any other change in accounting standards or the issuance of any other pronouncement, release
or interpretation, causes or requires the consolidation of all or a portion of the assets and
liabilities of the Seller or any Conduit Purchaser with the assets and liabilities of the
Administrator, any Purchaser Agent or any other Funding Source, such event shall constitute a
circumstance on which such Funding Source may base a claim for reimbursement under this Section
10.2.





 


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Section 10.3 Other Costs and Expenses. Seller shall pay to the Administrator, each
Purchaser Agent and each Purchaser on demand all reasonable costs and out-of-pocket expenses in
connection with the preparation, execution, delivery and administration of this Agreement, the
transactions contemplated hereby and the other documents to be delivered hereunder, including
without limitation, the cost of its auditors auditing the books, records and procedures of Seller,
reasonable fees and out-of-pocket expenses of independent legal counsel with respect thereto and
with respect to providing advice as to their respective rights and remedies under this Agreement
but excluding salaries and similar overhead costs of each Purchaser Group and the Administrator (it
being understood that, unless otherwise consented to by the Seller, the Administrator and each
Purchaser Group shall endeavor to utilize the same counsel to the extent
reasonably feasible). Seller shall pay to the Administrator, each Purchaser Agent and each
Purchaser on demand any and all costs and expenses thereof, if any, including reasonable counsel
fees and expenses in connection with the enforcement of this Agreement and the other documents
delivered hereunder and in connection with any restructuring or workout of this Agreement or such
documents, or the administration of this Agreement following an Amortization Event.




ARTICLE XI.




THE AGENTS





Section 11.1 Appointment and Authorization.




(a) Each Purchaser and Purchaser Agent hereby irrevocably designates and appoints Wachovia
Bank, National Association, as the “Administrator” hereunder and authorizes the Administrator to
take such actions and to exercise such powers as are delegated to the Administrator hereby and to
exercise such other powers as are reasonably incidental thereto. The Administrator shall hold, in
its name, for the benefit of each Purchaser, ratably, the Receivable Interests. The Administrator
shall not have any duties other than those expressly set forth herein or any fiduciary relationship
with any Purchaser or Purchaser Agent, and no implied obligations or liabilities shall be read into
this Agreement, or otherwise exist, against the Administrator. The Administrator does not assume,
nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with,
the Seller or Servicer. Notwithstanding any provision of this Agreement or any other Transaction
Document to the contrary, in no event shall the Administrator ever be required to take any action
which exposes the Administrator to personal liability or which is contrary to the provision of any
Transaction Document or applicable law.




(b) Each Purchaser hereby irrevocably designates and appoints the respective institution
identified as the Purchaser Agent for such Purchaser’s Purchaser Group on the signature pages
hereto or in the Assumption Agreement or Transfer Supplement pursuant to which such Purchaser
becomes a party hereto, and each authorizes such Purchaser Agent to take such action on its behalf
under the provisions of this Agreement and to exercise such powers and perform such duties as are
expressly delegated to such Purchaser Agent by the terms of this Agreement, if any, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, no Purchaser Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any Purchaser or other
Purchaser Agent or the Administrator, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities on the part of such Purchaser Agent shall be read into this
Agreement or otherwise exist against such Purchaser Agent.





 


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(c) Except as otherwise specifically provided in this Agreement, the provisions of this
Article XI are solely for the benefit of the Purchaser Agents, the Administrator and the
Purchasers, and none of the Seller or Servicer shall have any rights as a third-party beneficiary
or otherwise under any of the provisions of this Article XI, except that this Article XI shall not
affect any obligations which any Purchaser Agent, the Administrator or any Purchaser may have to
the Seller or the Servicer under the other provisions of this Agreement. Furthermore, no Purchaser
shall have any rights as a third-party beneficiary or otherwise under any of the provisions hereof
in respect of a Purchaser Agent which is not the Purchaser Agent for such Purchaser.




(d) In performing its functions and duties hereunder, the Administrator shall act solely as
the agent of the Purchasers and the Purchaser Agents and does not assume nor shall be deemed to
have assumed any obligation or relationship of trust or agency with or for the Seller or Servicer
or any of their successors and assigns. In performing its functions and duties hereunder, each
Purchaser Agent shall act solely as the agent of its respective Purchaser and does not assume nor
shall be deemed to have assumed
any obligation or relationship of trust or agency with or for the Seller, the Servicer, any
other Purchaser, any other Purchaser Agent or the Administrator, or any of their respective
successors and assigns.




Section 11.2 Delegation of Duties. The Administrator may execute any of its duties
through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrator shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable care.




Section 11.3 Exculpatory Provisions. None of the Purchaser Agents, the Administrator
or any of their directors, officers, agents or employees shall be liable for any action taken or
omitted (i) with the consent or at the direction of the Required Purchaser Agents (or in the case
of any Purchaser Agent, the Purchasers within its Purchaser Group that have a majority of the
aggregate Commitment of such Purchaser Group) or (ii) in the absence of such Person’s gross
negligence or willful misconduct. The Administrator shall not be responsible to any Purchaser,
Purchaser Agent or other Person for (i) any recitals, representations, warranties or other
statements made by the Seller, Servicer, or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction Document, (iii) any
failure of the Seller, the Servicer, any Originator or any of their Affiliates to perform any
obligation hereunder or under the other Transaction Documents to which it is a party (or under any
Contract), or (iv) the satisfaction of any condition specified in any Transaction Document. The
Administrator shall not have any obligation to any Purchaser or Purchaser Agent to ascertain or
inquire about the observance or performance of any agreement contained in any Transaction Document
or to inspect the properties, books or records of the Seller, Servicer, Originator or any of their
Affiliates.





Section 11.4 Reliance by Agents.




(a) Each Purchaser Agent and the Administrator shall in all cases be entitled to rely, and
shall be fully protected in relying, upon any document or other writing or





 


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conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person and upon advice and statements of legal counsel (including counsel to the Seller),
independent accountants and other experts selected by the Administrator. Each Purchaser Agent and
the Administrator shall in all cases be fully justified in failing or refusing to take any action
under any Transaction Document unless it shall first receive such advice or concurrence of the
Required Purchaser Agents (or in the case of any Purchaser Agent, the Purchasers within its
Purchaser Group that have a majority of the aggregate Commitment of such Purchaser Group), and
assurance of its indemnification, as it deems appropriate.




(b) The Administrator shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required Purchaser Agents or the
Purchaser Agents, and such request and any action taken or failure to act pursuant thereto shall be
binding upon all Purchasers, the Administrator and Purchaser Agents.




(c) The Purchasers within each Purchaser Group with a majority of the Commitment of such
Purchaser Group shall be entitled to request or direct the related Purchaser Agent to take action,
or refrain from taking action, under this Agreement on behalf of such Purchasers. Such Purchaser
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of such majority Purchasers, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of such Purchaser Agent’s
Purchasers.




(d) Unless otherwise advised in writing by a Purchaser Agent or by any Purchaser on whose
behalf such Purchaser Agent is purportedly acting, each party to this Agreement may assume that (i)
such Purchaser Agent is acting for the benefit of each of the Purchasers in respect of which such
Purchaser Agent is identified as being the “Purchaser Agent” in the definition of “Purchaser Agent”
hereto, as well as
for the benefit of each assignee or other transferee from any such Person, and (ii) each
action taken by such Purchaser Agent has been duly authorized and approved by all necessary action
on the part of the Purchasers on whose behalf it is purportedly acting. Each Purchaser Agent and
its Purchaser(s) shall agree amongst themselves as to the circumstances and procedures for removal,
resignation and replacement of such Purchaser Agent.




Section 11.5 Notice of Amortization Events. Neither any Purchaser Agent nor the
Administrator shall be deemed to have knowledge or notice of the occurrence of any Amortization
Event or Unmatured Amortization Event unless such Purchaser Agent or Administrator has received
notice from any Purchaser, Purchaser Agent, the Servicer or the Seller stating that an Amortization
Event or Unmatured Amortization Event has occurred hereunder and describing such Amortization Event
or Unmatured Amortization Event. In the event that the Administrator receives such a notice, it
shall promptly give notice thereof to each Purchaser Agent whereupon each such Purchaser Agent
shall promptly give notice thereof to its Purchasers. In the event that a Purchaser Agent receives
such a notice (other than from the Administrator), it shall promptly give notice thereof to the
Administrator. The Administrator shall take such action concerning an Amortization Event or
Unmatured Amortization Event as may be directed by the Required Purchaser Agents (unless such
action otherwise requires the consent of all Purchaser Agents), but until the Administrator
receives such directions, the Administrator may (but shall not be obligated to) take such action,
or refrain from taking such action, as the Administrator deems advisable and in the best interests
of the Purchasers and Purchaser Agents.




 


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Section 11.6 Non-Reliance on Administrator, Purchaser Agents and Other Purchasers.
Each Purchaser expressly acknowledges that none of the Administrator, the Purchaser Agents nor any
of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Administrator, or any Purchaser
Agent hereafter taken, including any review of the affairs of the Seller, Servicer or any
Originator, shall be deemed to constitute any representation or warranty by the Administrator or
such Purchaser Agent, as applicable. Each Purchaser represents and warrants to the Administrator
and the Purchaser Agents that, independently and without reliance upon the Administrator, Purchaser
Agents or any other Purchaser and based on such documents and information as it has deemed
appropriate, it has made and will continue to make its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and creditworthiness of
the Seller, Servicer or the Originators, and the Receivables and its own decision to enter into
this Agreement and to take, or omit, action under any Transaction Document. Except for items
specifically required to be delivered hereunder, the Administrator shall not have any duty or
responsibility to provide any Purchaser Agent with any information concerning the Seller, Servicer
or the Originators or any of their Affiliates that comes into the possession of the Administrator
or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.




Section 11.7 Administrators and Affiliates. Each of the Purchasers and the
Administrator and their Affiliates may extend credit to, accept deposits from and generally engage
in any kind of banking, trust, debt, entity or other business with the Seller, Servicer or any
Originator or any of their Affiliates. With respect to the acquisition of the Eligible Receivables
pursuant to this Agreement, each of the Purchaser Agents and the Administrator shall have the same
rights and powers under this Agreement as any Purchaser and may exercise the same as though it were
not such an agent, and the terms “Purchaser” and “Purchasers” shall include, to the extent
applicable, each of the Purchaser Agents and the Administrator in their individual capacities.




Section 11.8 Indemnification. Each Related Committed Purchaser shall indemnify and
hold harmless the Administrator (but solely in its capacity as Administrator) and its officers,
directors, employees, representatives and agents (to the extent not reimbursed by the Seller, the
Servicer or any Originator and without limiting the obligation of the Seller, the Servicer, or any Originator to do so),
ratably (based on its Commitment) from and against any and all liabilities, obligations, losses,
damages, penalties, judgments, settlements, costs, expenses and disbursements of any kind
whatsoever (including in connection with any investigative or threatened proceeding, whether or not
the Administrator or such Person shall be designated a party thereto) that may at any time be
imposed on, incurred by or asserted against the Administrator or such Person as a result of, or
related to, any of the transactions contemplated by the Transaction Documents or the execution,
delivery or performance of the Transaction Documents or any other document furnished in connection
therewith (but excluding any such liabilities, obligations, losses, damages, penalties, judgments,
settlements, costs, expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Administrator or such Person as finally determined by a court of competent
jurisdiction).


 


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Section 11.9 Successor Administrator. The Administrator may, upon at least five (5)
days notice to the Seller and each Purchaser and Purchaser Agent, resign as Administrator. Such
resignation shall not become effective until a successor agent is appointed by the Required
Purchasers and has accepted such appointment. Upon such acceptance of its appointment as
Administrator hereunder by a successor Administrator, such successor Administrator shall succeed to
and become vested with all the rights and duties of the retiring Administrator, and the retiring
Administrator shall be discharged from its duties and obligations under the Transaction Documents.
After any retiring Administrator’s resignation hereunder, the provisions of Article X and this
Article XI shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was the Administrator.




ARTICLE XII.




ASSIGNMENTS AND PARTICIPATIONS




Section 12.1 Successors and Assigns; Participations; Assignments.




(a) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. Except as otherwise
provided herein, no Seller Party may assign or transfer any of its rights or delegate any of its
duties hereunder or under any Transaction Document without the prior consent of the Administrator
and the Purchaser Agents.




(b) Participations. Except as otherwise specifically provided herein, any Purchaser
may sell to one or more Persons (each a “Participant”) participating interests in the interests of
such Purchaser hereunder; provided that, no Purchaser shall grant any participation under which the
Participant shall have rights to approve any amendment to or waiver of this Agreement or any other
Transaction Document. Such Purchaser shall remain solely responsible for performing its obligations
hereunder, and the Seller, each Purchaser Agent and the Administrator shall continue to deal solely
and directly with such Purchaser in connection with such Purchaser’s rights and obligations
hereunder. A Purchaser shall not agree with a Participant to restrict such Purchaser’s right to
agree to any amendment hereto, except amendments that require the consent of all Purchasers.




(c) Assignments by Certain Related Committed Purchasers. Any Related Committed
Purchaser may assign to one or more Persons (each a “Purchasing Related Committed Purchaser”),
reasonably acceptable to the related Purchaser Agent, any portion of its Commitment pursuant to a
supplement hereto, substantially in the form of Exhibit X with any changes as have been approved by
the parties thereto (each, a “Transfer Supplement”), executed by each such Purchasing Related
Committed Purchaser, such selling Related Committed Purchaser, such related Purchaser Agent and the
Administrator and so long as no Amortization Event has occurred with the consent of Seller (which
consent shall not be unreasonably withheld). Any such assignment by Related Committed Purchaser
cannot be for an amount less than $10,000,000. Upon (i) the execution of the Transfer Supplement,
(ii) delivery of an executed copy thereof to the Seller, such related Purchaser Agent and the Administrator and (iii) payment by the
Purchasing Related Committed Purchaser to the selling Related Committed Purchaser of the agreed
purchase price, if any, such selling Related Committed Purchaser shall be released from its
obligations hereunder to the extent of such assignment and such Purchasing


 


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Related Committed Purchaser shall for all purposes be a Related Committed Purchaser party hereto
and shall have all the rights and obligations of a Related Committed Purchaser hereunder to the
same extent as if it were an original party hereto. The amount of the Commitment of the selling
Related Committed Purchaser allocable to such Purchasing Related Committed Purchaser shall be equal
to the amount of the Commitment of the selling Related Committed Purchaser transferred regardless
of the purchase price, if any, paid therefor. The Transfer Supplement shall be an amendment hereof
only to the extent necessary to reflect the addition of such Purchasing Related Committed Purchaser
as a “Related Committed Purchaser” and any resulting adjustment of the selling Related Committed
Purchaser’s Commitment.



(d) Assignments to Liquidity Providers and other Funding Source Providers. Any Conduit
Purchaser may at any time grant to one or more of its Liquidity Providers or other Funding Source,
participating interests in its portion of the Receivable Interests. In the event of any such grant
by such Conduit Purchaser of a participating interest to a Liquidity Provider or other Funding
Source, such Conduit Purchaser shall remain responsible for the performance of its obligations
hereunder. The Seller agrees that each Liquidity Provider and Funding Source of any Conduit
Purchaser hereunder shall be entitled to the benefits of Section 1.7.




(e) Other Assignment by Conduit Purchasers. Each party hereto agrees and consents (i)
to any Conduit Purchaser’s assignment, participation, grant of security interests in or other
transfers of any portion of, or any of its beneficial interest in, the Purchased Interest (or
portion thereof), including without limitation to any collateral agent in connection with its
commercial paper program and (ii) to the complete assignment by any Conduit Purchaser of all of its
rights and obligations hereunder to any other Person with prior notice to the other parties hereto,
and upon such assignment such Conduit Purchaser shall be released from all obligations and duties,
if any, hereunder; provided that, such Conduit Purchaser may not, without the prior consent of its
Related Committed Purchasers, make any such transfer of its rights hereunder unless the assignee
(i) is principally engaged in the purchase of assets similar to the assets being purchased
hereunder, (ii) has as its Purchaser Agent the Purchaser Agent of the assigning Conduit Purchaser
and (iii) issues commercial paper with credit ratings substantially comparable to the ratings of
the assigning Conduit Purchaser. Any assigning Conduit Purchaser shall deliver to any assignee a
Transfer Supplement with any changes as have been approved by the parties thereto, duly executed by
such Conduit Purchaser, assigning any portion of its interest in the Receivable Interests to its
assignee. Such Conduit Purchaser shall promptly (i) notify each of the other parties hereto of such
assignment and (ii) take all further action that the assignee reasonably requests in order to
evidence the assignee’s right, title and interest in such interest in the Receivable Interests and
to enable the assignee to exercise or enforce any rights of such Conduit Purchaser hereunder. Upon
the assignment of any portion of its interest in the Receivable Interests, the assignee shall have
all of the rights hereunder with respect to such interest (except that the CP Costs therefor shall
thereafter accrue at the rate, determined with respect to the assigning Conduit Purchaser unless
the Seller, the related Purchaser Agent and the assignee shall have agreed upon a different CP
Costs).




(f) Opinions of Counsel. If required by the Administrator or the applicable Purchaser
Agent or to maintain the ratings of any Conduit Purchaser, each Transfer Supplement must be
accompanied by an opinion of counsel of the assignee as to such matters as the Administrator or
such Purchaser Agent may reasonably request.


 


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ARTICLE XIII.




MISCELLANEOUS




Section 13.1 Waivers and Amendments.




(a) No failure or delay on the part of the Administrator, any Purchaser Agent or any Purchaser
in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by
law. Any waiver of this Agreement shall be effective only in the specific instance and for the
specific purpose for which given.




(b) No provision of this Agreement may be amended, supplemented, modified or waived except in
writing in accordance with the provisions of this Section 13.1(b). Seller and the Administrator,
with the consent of the Required Purchaser Agents, may enter into written modifications or waivers
of any provisions of this Agreement; provided that, no such modification or waiver shall:





(i) without the consent of each Purchaser affected thereby, (A) extend the Facility
Termination Date for the related Purchaser Group or the date of any payment or deposit of
Collections by Seller or the Servicer, (B) reduce the rate or extend the time of payment of
Yield or any CP Costs (or any component of Yield or CP Costs), (C) reduce any fee payable to
such Purchaser, (D) change the Invested Amount of any Receivable Interest, (E) amend, modify
or waive any provision of the definition of Required Purchaser Agents, Section 9.1 or this
Section 13.1(b), (F) consent to or permit the assignment or transfer by Seller of any of its
rights and obligations under this Agreement, (G) change the definition of “Eligible
Receivable,” “Available Commitment,” “Loss Reserve,” “Dilution Reserve,” “Obligor
Concentration Limit,” “Yield Reserve,” “Purchase Limit,” “Commitment,” “Purchase Price,”
“Servicing Reserve,” “Servicing Fee Rate,” “Required Reserve” or “Required Reserve Factor
Floor” or (H) amend or modify any defined term (or any defined term used directly or
indirectly in such defined term) used in clauses (A) through (G) above in a manner that would
circumvent the intention of the restrictions set forth in such clauses; or





(ii) without the written consent of the Administrator and each Purchaser Agent, amend,
modify or waive any provision of this Agreement if the effect thereof is to affect the rights
(including, without limitation, fees and indemnities) or duties of such Administrator or
Purchaser Agent,



and any material amendment, waiver or other modification of this Agreement shall require
satisfaction of the Rating Agency Condition.



Section 13.2 Notices. Except as provided in this Section 13.2, all communications and
notices provided for hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other parties hereto at their





 


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respective addresses or telecopy numbers set forth on the signature pages hereof or at such other
address or telecopy number as such Person may hereafter specify for the purpose of notice to each
of the other parties hereto. Each such notice or other communication shall be effective (i) if
given by telecopy, upon the receipt thereof, (ii) if sent via U.S. certified or registered mail,
three (3) Business Days after the time such communication is deposited in the mail with first class
postage prepaid or (iii) if given by any other means, when received at the address specified in
this Section 13.2. Seller hereby authorizes the Administrator and each Purchaser Agent to effect
Purchases and Interest Period and Yield Rate selections based on telephonic notices made by any
Person whom such Administrator or Purchaser Agent in good faith believes to be acting on behalf of
Seller. Seller agrees to deliver promptly to such Administrator or Purchaser Agent a
written confirmation of each telephonic notice signed by an authorized officer of Seller; provided
that, the absence of such confirmation shall not affect the validity of such notice. If the written
confirmation differs from the action taken by the Administrator or any Purchaser Agent, the records
of such Administrator or Purchaser Agent shall govern absent manifest error.




Section 13.3 Protection of Administrator’s Security Interest.




(a) Seller agrees that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents, and take all actions, that may be necessary or desirable, or that
the Administrator or any Purchaser Agent may request, to perfect, protect or more fully evidence
the Administrator’s security interest in the Purchased Assets, or to enable the Administrator, any
Purchaser Agent or any Purchaser to exercise and enforce their rights and remedies hereunder. At
any time after the occurrence of an Amortization Event the Administrator may, or the Administrator
may direct Seller or the Servicer to, notify the Obligors of Receivables, at Seller’s expense, of
the ownership or security interests of the Administrator (for the benefit of the Secured Parties)
under this Agreement and may also direct that payments of all amounts due or that become due under
any or all Receivables be made directly to the Administrator or its designee. Seller or the
Servicer (as applicable) shall, at the Administrator’s request, withhold the identities of the
Administrator, each Purchaser Agent and each Purchaser in any such notification.




(b) If any Seller Party fails to perform any of its obligations under Section 13.3(a) and
notice of such failure is given to the Seller Party, the Administrator, any Purchaser Agent or any
Purchaser may (but shall not be required to) perform, or cause performance of, such obligations,
and the costs and expenses incurred in connection therewith shall be payable by Seller as provided
in Section 10.3. Each Seller Party irrevocably authorizes the Administrator at any time and from
time to time in the sole discretion of the Administrator, and appoints the Administrator as its
attorney-in-fact, to act on behalf of such Seller Party (i) to execute on behalf of Seller as
debtor and to file financing statements necessary or desirable in the Administrator’s sole
discretion to perfect and to maintain the perfection and priority of the interest of the
Administrator for the benefit of the Secured Parties in the Receivables and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing statement with respect to the
Receivables as a financing statement in such offices as the Administrator in its sole discretion
deems necessary or desirable to perfect and to maintain the perfection and priority of the
Administrator’s security interest in the Purchased Assets, for the benefit of the Secured Parties.
The Administrator shall provide the Seller with copies of any such filings. This appointment is
coupled with an interest and is irrevocable. Each of the Seller Parties (A) hereby authorizes the
Administrator to file financing statements and other filing or recording documents with respect





 


48









 







to the Receivables and Related Security (including any amendments thereto, or continuation or
termination statements thereof), without the signature or other authorization of such Seller Party,
in such form and in such offices as the Administrator reasonably determines appropriate to perfect
or maintain the perfection of the security interest of the Administrator hereunder, (B)
acknowledges and agrees that it is not authorized to, and will not, file financing statements or
other filing or recording documents with respect to the Receivables or Related Security (including
any amendments thereto, or continuation or termination statements thereof), without the express
prior written approval by the Administrator, consenting to the form and substance of such filing or
recording document, and (C) approves, authorizes and ratifies any filings or recordings made by or
on behalf of the Administrator in connection with the perfection of the security interests in favor
of Seller or the Administrator.



Section 13.4 Confidentiality.



(a) Each of the Seller Parties shall maintain and shall cause each of its employees and
officers to maintain the confidentiality of the Fee Letters and the other confidential or
proprietary information with respect to the Administrator, each Purchaser Agent and each Purchaser and their respective
businesses obtained by it or them in connection with the structuring, negotiating and execution of
the transactions contemplated herein, except that such Seller Party and its officers and employees
may disclose such information to such Seller Party’s auditors and attorneys, employees, financial
advisors or rating agencies and as required by any applicable law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or proceeding (whether or
not having the force or effect of law).



(b) Anything herein to the contrary notwithstanding, each Seller Party hereby consents to the
disclosure of any nonpublic information with respect to it in connection with the transactions
contemplated herein (i) to the Administrator, any Purchaser Agent, any Purchaser or any other
Funding Source by each other, (ii) by any such Person to any prospective or actual assignee or
participant of any of them, (iii) by any such Person to any rating agency or Commercial Paper
dealer and (iv) to any officers, directors, employees, outside accountants, financial advisors, and
attorneys of any of the foregoing; provided that each such Person is informed of the confidential
nature of such information. In addition, any such Person may disclose any such nonpublic
information pursuant to any law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not having the force or effect of
law).




(c) Notwithstanding anything herein to the contrary, to the extent not inconsistent with
applicable securities laws, each party hereto (and each of its employees, representatives or other
agents) may disclose to any and all Persons, without limitation of any kind, the tax treatment and
tax structure of the transaction (as defined in Section 1.6011-4 of the Treasury Regulations) and
all materials of any kind (including opinions or other tax analyses) to the extent relating to such
tax treatment and tax structure.




Section 13.5 Bankruptcy Petition. Seller, the Servicer, the Administrator, each
Purchaser Agent and each Related Committed Purchaser hereby covenants and agrees that, prior to the
date that is one year and one day after the payment in full of all outstanding senior indebtedness
of each Conduit Purchaser, it will not institute against, or join any other Person in instituting
against, each Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States.





 


49









 







Section 13.6 Limitation of Liability. No claim may be made by any Seller Party or any
other Person against the Administrator, any Purchaser Agent, any Purchaser or any other Funding
Source or their respective Affiliates, directors, officers, employees, attorneys or agent for any
special, indirect, consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and each Seller Party
hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.




Section 13.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW (EXCEPT IN THE CASE OF THE
OTHER TRANSACTION DOCUMENTS, TO THE EXTENT OTHERWISE EXPRESSLY STATED THEREIN) AND EXCEPT TO THE
EXTENT THAT THE PERFECTION OF THE OWNERSHIP INTEREST OF SELLER OR THE OWNERSHIP OR SECURITY
INTEREST OF THE ADMINISTRATOR (FOR THE BENEFIT OF THE SECURED PARTIES) IN ANY OF THE COLLATERAL IS
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.



Section 13.8 CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT SITTING IN THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING
IN NEW YORK COUNTY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT, AND EACH SUCH PARTY HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATOR, ANY PURCHASER AGENT OR ANY
PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE ADMINISTRATOR , ANY PURCHASER AGENT OR ANY
PURCHASER OR ANY AFFILIATE OF THE ADMINISTRATOR, ANY PURCHASER AGENT OR ANY PURCHASER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT
ONLY IN A COURT IN NEW YORK, NEW YORK.




Section 13.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY





 


50









 







OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY SELLER PARTY
PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.




Section 13.10 Integration; Binding Effect; Survival of Terms.



(a) This Agreement and each other Transaction Document contain the 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 prior oral or written understandings.



(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns (including any trustee in bankruptcy). This
Agreement shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms and shall remain in full force and effect until terminated in accordance
with its terms; provided that the rights and remedies with respect to (i) any breach of any
representation and warranty made by any Seller Party pursuant to Article V, (ii) the
indemnification and payment provisions of Article X, and Sections 13.4 and 13.5 shall be continuing
and shall survive any termination of this Agreement.




(c) Each of the Seller Parties, and the Administrator, the Purchaser Agents and the Purchasers
hereby acknowledges and agrees that the Funding Sources are hereby made express third party
beneficiaries of this Agreement and each of the other Transaction Documents as in effect from time
to time.




Section 13.11 Counterparts; Severability; Section References. This Agreement may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same Agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of a signature page to this Agreement. Any provisions of this Agreement which
are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. Unless otherwise expressly indicated, all references herein to “Article,” “Section,”
“Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this
Agreement.




Section 13.12 Characterization.



(a) It is the intention of the parties hereto that each Purchase hereunder shall constitute
and be treated as an absolute and irrevocable sale, which Purchase shall provide the Administrator
(for the benefit of the Secured Parties) with the full benefits of ownership of the applicable
Receivable Interest. Except as specifically provided in this Agreement, each sale of a Receivable
Interest hereunder is made without recourse to Seller; provided that (i) Seller shall be liable to
the Administrator, the Purchaser Agents and the Purchasers for all representations,



 


51









 







warranties, covenants and indemnities made by Seller pursuant to the terms of this Agreement, and
(ii) such sale does not constitute and is not intended to result in an assumption by the
Administrator, any Purchaser Agent or any Purchaser or any assignee thereof of any obligation of
Seller or any Originator or any other person arising in connection with the Receivables, the
Related Security, or the related Contracts, or any other obligations of Seller or any Originator.




(b) In addition to any ownership interest which the Administrator or any Purchaser may from
time to time acquire pursuant hereto, Seller hereby grants to the Administrator for the benefit of
Secured Parties a valid and perfected security interest in all of Seller’s right, title and
interest in, to and under all Receivables now existing or hereafter arising, the Collections, each
Lock-Box, each Collection Account, all Related Security, all other rights and payments relating to
such Receivables, and all proceeds of any thereof prior to all other liens on and security
interests therein to secure the prompt and complete payment of the Aggregate Unpaids. The
Administrator, on behalf of Secured Parties, shall have, in addition to the rights and remedies
that it may have under this Agreement, all other rights and remedies provided to a secured creditor
under the UCC and other applicable law, which rights and remedies shall be cumulative.




<signature pages follow>





 


52









 







IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized officers or attorneys-in-fact as of the date hereof.



	 	 	 	 	 
	AMERISOURCE RECEIVABLES
FINANCIAL CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	/s/ J.F. Quinn	 	 
	 

	 	 

Name:  J.F. Quinn

Title:   Vice President and Corporate Treasurer
	 	 






	 	 	 
	Address:

	 	Amerisource Receivables Financial Corporation

P. O. Box 1735

Southeastern, PA 19399

	Attention:

	 	Jack Quinn
	Telephone:

	 	(610) 727-7453
	Facsimile:

	 	(610) 727-3639






	 	 	 	 	 
	AMERISOURCEBERGEN DRUG CORPORATION, 

as Servicer	 	 
	 
	 	 	 	 
	By:
	 	/s/ J.F. Quinn	 	 
	 

	 	 

Name:  J.F. Quinn

Title:   Vice President and Corporate Treasurer
	 	 






	 	 	 
	Address:

	 	AmerisourceBergen Drug Corporation

1300 Morris Drive

Chesterbrook, PA 19087
	Attention:

	 	Jack Quinn
	Telephone:

	 	(610) 727-7116
	Facsimile:

	 	(610) 727-3639






					
	 	 	 	 	 
	 
	 	 
	 	Receivables Purchase Agreement





 


S-1









 





BLUE RIDGE ASSET FUNDING CORPORATION,

as a Conduit Purchaser




	 	 	 	 	 
	BY:

	 	WACHOVIA CAPITAL MARKETS, LLC,	 	 
	ITS ATTORNEY-IN-FACT	 	 
	 
	 	 	 	 
	By:
	 	/s/ Douglas R. Wilson, Sr.	 	 
	 

	 	 

Name: Douglas R. Wilson, Sr.

Title:   Vice President
	 	 






	 	 	 
	Address:

	 	Wachovia Capital Markets, LLC

301 South College Street

Charlotte, NC 28288
	Attention:

	 	Doug Wilson
	Telephone:

	 	(704) 374-2520
	Facsimile:

	 	(704) 383-9579






With a copy to:



Blue Ridge Asset Funding Corporation

c/o AMACAR Group, L.L.C.

6525 Morrison Boulevard,

Suite 318

Charlotte, NC 28211



WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrator and as Purchaser Agent and

Related Committed Purchaser for

Blue Ridge Asset Funding Corporation




	 	 	 	 	 
	By:
	 	/s/ Victoria A. Dudley	 	 
	 

	 	 

Name: Victoria A. Dudley

Title:   Managing Director
	 	 






	 	 	 
	Address:

	 	Wachovia Bank, National Association

191 Peachtree Street, NE

22nd Floor

Mail Code GA8047

Atlanta, GA 30303
	Attention:

	 	Cecil Noble
	Telephone:

	 	(404) 332-4209
	Facsimile:

	 	(404) 332-5152






Commitment: $250,000,000



Scheduled Facility Termination Date: July 6, 2006 with respect to $250,000,000 of the Commitment.



					
	 	 	 	 	 
	 
	 	 
	 	Receivables Purchase Agreement





 


S-2









 





EAGLEFUNDING CAPITAL CORPORATION,

as a Conduit Purchaser




	 	 	 	 	 
	By:

	 	FLEET SECURITIES, INC., as attorney-in-fact	 	 
	 
	 	 	 	 
	By:
	 	/s/ Jolin T. Hackett III	 	 
	 

	 	 

Name: Jolin T. Hackett III

Title:   Managing Director
	 	 






Fleet Securities, Inc.

100 Federal Street

Boston, Massachusetts 02110

Attention: John T. Hackett III

Telephone: (617) 434-4702

Telecopy: (617) 434-5719



FLEET NATIONAL BANK, as a Related Committed Purchaser

for EagleFunding Capital Corporation




	 	 	 	 	 
	By:

	 	FLEET SECURITIES, INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Thomas M. Callhoun	 	 
	 

	 	 

As agent for Fleet National Bank

Name: Thomas M. Callhoun

Title:   Managing Director
	 	 






Fleet Securities, Inc.

100 Federal Street

Boston, Massachusetts 02110

Attention: Peter M. Benham

Telephone: (617) 434-5241

Telecopy: (617) 434-5719




Commitment: $250,000,000




					
	 	 	 	 	 
	 
	 	 
	 	Receivables Purchase Agreement





 


S-3









 





FLEET SECURITIES, INC., as Purchaser Agent for

EagleFunding Capital Corporation and its Related Committed Purchasers




	 	 	 	 	 
	By:
	 	/s/ John T. Hackett III	 	 
	 

	 	 

Name: John T. Hackett III

Title:   Managing Director
	 	 






Fleet Securities, Inc.

100 Federal Street

Boston, Massachusetts 02110

Attention: John T. Hackett III

Telephone: (617) 434-4702

Telecopy: (617) 434-5719




Scheduled Facility Termination Date: July 6, 2006 with respect to $125,000,000 of the Commitment
and July 8, 2004 with respect to the remaining $125,000,000 of the Commitment.



					
	 	 	 	 	 
	 
	 	 
	 	Receivables Purchase Agreement





 


S-4









 





LIBERTY STREET FUNDING CORP., as a Conduit Purchaser




	 	 	 	 	 
	By:
	 	/s/ Andrew L. Stidd	 	 
	 

	 	 

Name: Andrew L. Stidd

Title:   President
	 	 






Address:



Liberty Street Funding Corp.

c/o Global Securitization Services, LLC

114 West 47th Street, Suite 1715

New York, New York 10036

Attention: Andrew L. Stidd

Telephone No.: (212) 302-5151

Facsimile No.: (212) 302-8767



THE BANK OF NOVA SCOTIA, as Administrator

and as Purchaser Agent and Related Committed Purchaser

for Liberty Street Funding Corp.




	 	 	 	 	 
	By:
	 	/s/ Michael Eden	 	 
	 

	 	 

Name: Michael Eden

Title:   Director
	 	 






Address:




The Bank of Nova Scotia

One Liberty Plaza

New York, New York 10006

Attention: Michael Eden

Telephone No.: (212) 225-5237

Facsimile No.: (212) 225-5274



Commitment: $250,000,000




Scheduled Facility Termination Date: July 6, 2006 with respect to $125,000,000 of the Commitment
and July 8, 2004 with respect to the remaining $125,000,000 of the Commitment.



	 	 	 	 	 
	  
	 	 
	 	Receivables Purchase Agreement





 


S-5









 





ATLANTIC ASSET SECURITIZATION CORP.,

as a Conduit Purchaser




	 	 	 	 	 
	By:

	 	CREDIT LYONNAIS, its attorney-in-fact	 	 
	 
	 	 	 	 
	By:
	 	/s/ Conrad Meyer	 	 
	 

	 	 

Name: Conrad Meyer

Title:   Director
	 	 






1301 Avenue of the Americas

New York, New York 10019-6022

Attn: Conrad A. Meyer

Telephone: (212) 261-7609

Telecopy: (212) 459-3258



CREDIT LYONNAIS, as Administrator

and as Purchaser Agent and Related Committed Purchaser

for Atlantic Asset Securitization Corp.




	 	 	 	 	 
	By:
	 	/s/ Conrad Meyer	 	 
	 

	 	 

Name: Conrad Meyer

Title:   Director
	 	 






1301 Avenue of the Americas

New York, New York 10019-6022

Attn: Conrad A. Meyer

Telephone: (212) 261-7609

Telecopy: (212) 459-3258



Commitment: $200,000,000




Scheduled Facility Termination Date: July 8, 2004 with respect to $200,000,000 of the Commitment.



	 	 	 	 	 
	  
	 	
	 	Receivables Purchase Agreement





 


S-6









 






	 	 	 	 	 
	MARKET STREET FUNDING CORPORATION, 

as a Conduit Purchaser	 	 
	 
	 	 	 	 
	By:
	 	/s/ Douglas K. Johnson	 	 
	 

	 	 

Name: Douglas K. Johnson

Title:   President
	 	 






c/o AMACAR Group, L.L.C.

6525 Morrison Boulevard,

Suite 318

Charlotte, NC 28211

United States of America



PNC BANK, NATIONAL ASSOCIATION, as Administrator

and as Purchaser Agent and Related Committed Purchaser

for Market Street Funding Corporation




	 	 	 	 	 
	By:
	 	/s/ John T. Smathers	 	 
	 

	 	 

Name: John T. Smathers

Title:   Vice President
	 	 






One PNC Plaza, 26th Floor

249 Fifth Avenue

Pittsburgh, Pennsylvania 15222

Attention: John Smathers

Telephone: (412) 762-6440

Telecopy: (412) 762-9184



Commitment: $100,000,000




Scheduled Facility Termination Date: July 6, 2006 with respect to $50,000,000 of the Commitment and
July 8, 2004 with respect to the remaining $50,000,000 of the Commitment.



	 	 	 	 	 
	  
	 	 
	 	Receivables Purchase Agreement





 


S-7









 





EXHIBIT I




DEFINITIONS




As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):




“Adjusted Dilution Ratio” means, at any time, the rolling average of the Dilution Ratio for
the 12 Calculation Periods then most recently ended.




“Administrator” has the meaning set forth in the preamble to this Agreement.




“Affiliate” shall mean, with respect to a Person, any other Person, which directly or
indirectly controls, is controlled by or is under common control with, such Person. The term
“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.



“Aggregate Invested Amount” means, on any date of determination, the aggregate Invested Amount
of all Receivable Interests of all Purchasers outstanding on such date.



“Aggregate Reduction” has the meaning specified in Section 1.3.




“Aggregate Unpaids” means, at any time, an amount equal to the sum of (i) the Aggregate
Invested Amount, plus (ii) all Recourse Obligations (whether due or accrued) at such time.




“Agreement” means this Receivables Purchase Agreement, as it may be amended or modified and in
effect from time to time.




“Alternate Base Rate” means, for any day for any Purchaser (a) the rate per annum equal to the
higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent (0.50%) above the
Federal Funds Rate or (b) any other rate designated as the “Alternate Base Rate” for such Purchaser
in an Assumption Agreement or Transfer Supplement pursuant to which such Purchaser becomes a party
(as a Purchaser) to the Agreement, or any other written agreement among such Purchaser to the
Seller, the Servicer, the related Purchaser Agent and the Administrator from time to time. For
purposes of determining the Alternate Base Rate for any day, changes in the Prime Rate or the
Federal Funds Rate shall be effective on the date of each such change.



“AmerisourceBergen” shall mean AmerisourceBergen Corporation, a Delaware corporation.




“Amortization Date” means the earliest to occur of (i) the day on which any of the conditions
precedent set forth in Section 6.2 are not satisfied, (ii) the Business Day immediately prior to
the occurrence of an Event of Bankruptcy with respect to any Seller Party, (iii) the Business Day
specified in a written notice from the Administrator following the




 


I-1









 







occurrence of any other Amortization Event, and (iv) the date which is 30 days after the
Administrator’s receipt of written notice from Seller that it wishes to terminate the facility
evidenced by this Agreement.



“Amortization Event” has the meaning specified in Article IX.




“Applicable Originator” shall mean the Originator which generated a specific Receivable (or
Receivables).




“Assumption Agreement” means an agreement substantially in the form set forth in Exhibit IX to
the Agreement.




“Authorized Officer” means, with respect to any Person, its president, corporate controller,
treasurer or chief financial officer.




“Available Commitment” means, with respect to each Related Committed Purchaser the excess, if
any, of such Related Committed Purchaser’s Commitment over the amount funded as of such date by
such Related Committed Purchaser with respect to outstanding principal of the Receivable Interests
under the Liquidity Agreement for the Conduit Purchaser in the related Purchaser Group.




“Bank Rate Funding” means a purchase by any Liquidity Provider pursuant to its Liquidity
Commitment of all or any portion of, or any undivided interest in, a Receivable Interest or any
funding of a Receivable Interest hereunder by a Related Committed Purchaser other than through the issuance
of Commercial Paper.




“Broken Funding Costs” means for any Receivable Interest which: (i) has its Invested Amount
reduced (I) if funded with Commercial Paper (a) with respect to the Blue Ridge Asset Funding
Corporation, Liberty Street Funding Corp. and Market Street Funding Corporation, without compliance
by Seller with the notice requirements hereunder or (b) with respect to EagleFunding Capital
Corporation or Atlantic Asset Securitization Corp., on any date other than a Settlement Date or
(II) if funded by reference to the LIBO Rate, on any date other than the Settlement Date or (ii)
does not become subject to an Aggregate Reduction following the delivery of any Reduction Notice or
(iii) is assigned by any Conduit Purchaser to the Liquidity Providers under the related Liquidity
Agreement or terminated prior to the date on which it was originally scheduled to end; an amount
equal to the excess, if any, of (A) the CP Costs or Yield (as applicable) that would have accrued
during the remainder of the Interest Periods or the tranche periods for Commercial Paper determined
by the applicable Purchaser Agent to relate to such Receivable Interest (as applicable) subsequent
to the date of such reduction, assignment or termination (or in respect of clause (ii) above, the
date such Aggregate Reduction was designated to occur pursuant to the Reduction Notice) of the
Invested Amount of such Receivable Interest if such reduction, assignment or termination had not
occurred or such Reduction Notice had not been delivered, over (B) the sum of (x) to the extent all
or a portion of such Invested Amount is allocated to another Receivable Interest, the amount of CP
Costs or Yield actually accrued during the remainder of such period on such Invested Amount for the
new Receivable Interest, and (y) to the extent such Invested Amount is not allocated to another
Receivable Interest, the income, if any, actually received during the remainder of such period by
the holder of such Receivable Interest from investing the portion of such Invested Amount not so




 


I-2









 







allocated. In the event that the amount referred to in clause (B) exceeds the amount referred to in
clause (A), the relevant Purchaser or Purchasers agree to pay to Seller the amount of such excess
(net of any amounts due to such Purchasers). All Broken Funding Costs shall be due and payable
hereunder upon written demand.



“Business Day” means any day on which banks are not authorized or required to close in New
York, New York, Philadelphia, Pennsylvania or Atlanta, Georgia, and The Depository Trust Company of
New York is open for business, and, if the applicable Business Day relates to any computation or
payment to be made with respect to the LIBO Rate, any day on which dealings in dollar deposits are
carried on in the London interbank market.




“Calculation Period” means a calendar month.




“Capitalized Lease” of a Person shall mean any lease of property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.




“Change of Control” means the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of
voting stock of the Performance Guarantor.




“Collection Account” means each concentration account, depositary account, lock-box account or
similar account in which any Collections are collected or deposited and which is listed on Exhibit
IV.




“Collection Account Agreement” means an agreement substantially in the form of Exhibit VI
among an Originator, Servicer, Seller, the Administrator and a Collection Bank.



“Collection Bank” means, at any time, any of the banks holding one or more Collection
Accounts.




“Collection Notice” means a notice, in substantially the form of Annex A to Exhibit VI, from
the Administrator to a Collection Bank.




“Collections” means, with respect to any Receivable, all cash collections and other cash
proceeds in respect of such Receivable, including, without limitation, all Finance Charges or other
related amounts accruing in respect thereof and all cash proceeds of Related Security with respect
to such Receivable.




“Commercial Paper” means promissory notes of a Conduit Purchaser issued by such Conduit
Purchaser in the commercial paper market.




“Commitment” means, with respect to each Related Committed Purchaser, the aggregate maximum
amount which such Purchaser is obligated to pay hereunder on account of all Purchases, as set forth
below its signature to this Agreement or in the Assumption Agreement or other agreement pursuant to
which it became a Purchaser, as such amount may be modified in connection with any subsequent
assignment pursuant to Section 12.1 or in connection with a reduction in the Purchase Limit
pursuant to Section 1.1(b).




 


I-3









 







“Commitment Percentage” means, for each Related Committed Purchaser in a Purchaser Group, such
Related Committed Purchaser’s Available Commitment divided by the total of all Available
Commitments of all Related Committed Purchasers in such Purchaser Group.



“Conduit Purchasers” means each commercial paper conduit that is a party to the Agreement, as
a purchaser, or that becomes a party to the Agreement, as a “Conduit Purchaser” pursuant to an
Assumption Agreement or otherwise.



“Consolidated Subsidiary” shall mean, at any date, for any Person, any Subsidiary or other
entity the accounts of which would be consolidated under GAAP with those of such Person in its
consolidated financial statements as of such date.



“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any
other Person, or agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person against loss,
including, without limitation, any comfort letter, operating agreement, take-or-pay contract or
application for a letter of credit.




“Contract” means, with respect to any Receivable, any and all instruments, agreements,
invoices or other writings pursuant to which such Receivable arises or which evidences such
Receivable.



“CP Costs” means, for each day for any Conduit Purchaser (a) the “weighted average cost” (as
defined below) for such day related to the issuance of Commercial Paper by such Conduit Purchaser
that is allocated, in whole or in part by such Conduit Purchaser, to fund all or part of its
Purchases (and which may also be allocated in part to the funding of other assets of such Conduit
Purchaser) or (b) any other amount designated as the “CP Costs” for such Conduit Purchaser in an
Assumption Agreement or Transfer Supplement pursuant to which such Conduit Purchaser becomes a
party (as a Conduit Purchaser) to the Agreement, or any other written agreement among such Conduit
Purchaser, the Seller, the Servicer, the related Purchaser Agent and the Administrator from time to
time. As used in this definition, the “weighted average cost” shall consist of (A) the actual
interest rate (or discount) paid to purchasers of Commercial Paper issued by such Conduit Purchaser, together with the commissions of placement agents and
dealers in respect of such Commercial Paper, to the extent such commissions are allocated, in whole
or in part, to such Commercial Paper (B) the costs associated with the issuance of such Commercial
Paper, including without limitation, issuing and paying agent fees incurred with respect to such
Commercial Paper, (C) any incremental carrying costs incurred with respect to Commercial Paper
maturing on dates other than those on which corresponding funds are received by such Conduit
Purchaser under this Agreement and (D) interest on other borrowing or funding sources by such
Conduit Purchaser, including to fund small or odd dollar amounts that are not easily accommodated
in the commercial paper market and interest under any voluntary advance agreement. In addition to
the foregoing costs, if Seller shall request any Incremental Purchase during any period of time
determined by the applicable Purchaser Agent in its sole discretion to result in incrementally
higher CP Costs applicable to such Incremental Purchase, the Invested Amount associated with any
such Incremental Purchase shall, during such period,



 


I-4









 







be deemed to be funded by such Conduit Purchaser in a special pool (which may include capital
associated with other receivable purchase facilities) for purposes of determining such additional
CP Costs applicable only to such special pool and charged each day during such period to the
Seller.




“Credit Agreement” shall mean the Credit Agreement dated as of August 29, 2001, among
AmerisourceBergen, the lenders named therein and The Chase Manhattan Bank (including its successors
and assigns), as Administrative Agent, as the same may from time to time be amended, supplemented
or otherwise modified.



“Credit and Collection Policy” means, as applicable, each of the Servicer’s or the Applicable
Originator’s credit and collection policies and practices relating to Contracts and Receivables
existing on the date hereof and summarized in Exhibit VII hereto, as modified from time to time in
accordance with this Agreement.



“Cut-Off Date” means the last day of a Calculation Period.




“Days Sales Outstanding” means, as of any day, an amount equal to the product of (x) 91,
multiplied by (y) the amount obtained by dividing (i) the aggregate outstanding balance of
Receivables as of the most recent Cut-Off Date, by (ii) the aggregate amount of Receivables created
during the three (3) Calculation Periods including and immediately preceding such Cut-Off Date.



“Deemed Collections” means Collections deemed received by Seller under Section 1.4(a).




“Default Horizon Ratio” means, as of any Cut-Off Date, the ratio (expressed as a decimal)
computed by dividing (i) the aggregate amount of Receivables originated by the Originators during
the four Calculation Periods ending on such Cut-Off Date, by (ii) the Net Pool Balance as of such
Cut-off Date.



“Default Rate” means a rate per annum equal to the sum of (i) the Alternate Base Rate plus
(ii) 2.00%, changing when and as the Alternate Base Rate changes.



“Default Ratio” means, as of any Cut-Off Date, the ratio (expressed as a percentage) computed
by dividing (x) the total amount of Receivables which became Defaulted Receivables during the
Calculation Period that includes such Cut-Off Date, by (y) the aggregate amount of receivables
originated by the Originators during the Calculation Period occurring five months prior to the
Calculation Period ending on such Cut-Off Date.



“Defaulted Receivable” means a Receivable (without duplication): (i) as to which the Obligor
thereof has suffered an Event of Bankruptcy; (ii) which, consistent with the Credit and Collection
Policy, should be written off Seller’s books as uncollectible; or (iii) as to which any payment, or
part thereof, remains unpaid for 121 days or more from the original due date for such payment (determined
without regard to any extension of the due date pursuant to Section 8.2(d)). The Outstanding
Balance of any Defaulted Receivable shall be determined without regard to any credit memos or
credit balances.




 


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“Delinquency Ratio” means, at any time, a percentage equal to (i) the aggregate Outstanding
Balance of all Receivables that were Delinquent Receivables at such time divided by (ii) the
aggregate Outstanding Balance of all Receivables at such time.



“Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains
unpaid for 61-120 days from the original due date for such payment (determined without regard to
any extension of the due date pursuant to Section 8.2(d)). The Outstanding Balance of any
Delinquent Receivable shall be determined without regard to any credit memos or credit balances.



“Demand Advance” means any advance made by Seller to ABDC at any time while it is acting as
the Servicer, which advance (a) is payable upon demand, (b) is not evidenced by an instrument,
chattel paper or a certificated security, (c) bears interest at a market rate determined by Seller
and the Servicer from time to time, (d) is not subordinated to any other Indebtedness or obligation
of the Servicer, and (e) may not be offset by ABDC against amounts due and owing from Seller to it
under its Subordinated Note; provided that no Demand Advance may be made after the Final Facility
Termination Date or on any date prior to the Final Facility Termination Date on which an
Amortization Event or an Unmatured Amortization Event exists and is continuing.



“Dilution” means the amount of any reduction or cancellation of the Outstanding Balance of a
Receivable as described in Section 1.4(a).



“Dilution Horizon Ratio” means, as of any Cut-off Date, a ratio (expressed as a decimal),
computed by dividing (i) the aggregate amount of receivables originated by the Originators during
the Calculation Period ending on such Cut-Off Date, by (ii) the Net Pool Balance as of such Cut-Off
Date.



“Dilution Ratio” means, as of any Cut-Off Date, a ratio (expressed as a percentage), computed
by dividing (i) the total amount of decreases in Outstanding Balances due to Dilutions during the
Calculation Period ending on such Cut-Off Date, by (ii) the aggregate sales generated by the
Originators during the Calculation Period prior to the Calculation Period ending on such Cut-Off
Date.



“Dilution Reserve” means, for any Calculation Period, the product (expressed as a percentage)
of:





(a) the sum of (i) two (2) times the Adjusted Dilution Ratio as of the immediately
preceding Cut-Off Date, plus (ii) the Dilution Volatility Component as of the immediately
preceding Cut-Off Date, times





(b) the Dilution Horizon Ratio as of the immediately preceding Cut-Off Date.




“Dilution Volatility Component” means the product (expressed as a percentage) of (i) the
difference between (a) the highest three (3)-month rolling average Dilution Ratio over the past 12
Calculation Periods and (b) the Adjusted Dilution Ratio, and (ii) a fraction, the numerator of
which is equal to the amount calculated in (i)(a) of this definition and the denominator of which
is equal to the amount calculated in (i)(b) of this definition.




 


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“Dispute” shall mean any dispute, deduction, claim, offset, defense, counterclaim, set-off or
obligation of any kind, contingent or otherwise, relating to a Receivable, including, without
limitation, any dispute relating to goods or services already paid for.



“Dollar” and “$” shall mean lawful currency of the United States of America.




“Eligible Assignee” means a commercial bank having a combined capital and surplus of at least
$250,000,000 with a rating of its (or its parent holding company’s) short-term securities equal to
or higher than (i) A-1 by S&P and (ii) P-1 by Moody’s (or such other criteria as the applicable
Purchaser Agent shall specify to the Administrator and the Seller from time to time).




“Eligible Receivable” means, at any time, a Receivable:





(a) which complies with all applicable Laws and other legal requirements, whether
Federal, state or local, including, without limitation, to the extent applicable, usury laws,
the Federal Consumer Credit Protection Act, the Fair Credit Billing Act, the Federal Truth in
Lending Act, and Regulation Z of the Board of Governors of the Federal Reserve System;





(b) which constitutes an “account”, “chattel paper” or a “general intangible” as defined
in the UCC as in effect in the State of New York and the jurisdiction whose Law governs the
perfection of the Administrator’s (for the benefit of the Secured Parties) ownership and
security interest therein, and is not evidenced by an “instrument,” as defined in the UCC as
so in effect;





(c) which was originated in connection with a sale of goods or the provision of services
by the Applicable Originator in the ordinary course of its business to an Obligor who was
approved by the Applicable Originator in accordance with its Credit and Collection Policy, and
which Obligor is not an Affiliate of the Seller or the Applicable Originator;





(d) which (i) arises from a Contract and has been billed, or in respect of which the
related Obligor is otherwise liable, in accordance with the terms of such Contract and (ii)
arises from a Contract that (A) does not require the Obligor under such Contract to consent to
the transfer, sale or assignment of the rights and duties of the Applicable Originator or the
Seller under such Contract and (B) does not contain any provision that restricts the ability
of the Administrator, any Purchaser Agent or any Purchaser to exercise its rights under this
Agreement (or the Receivables Sale Agreement), including, without limitation, the right to
review the Contract;





(e) which is genuine and constitutes a legal, valid, binding and irrevocable payment
obligation of the related Obligor, enforceable in accordance with its terms, and which is not
subject to any Disputes or other offsets, counterclaims, defenses or contra accounts;





(f) which provides for payment in Dollars and is to be paid in the United States by the
related Obligor;




 


I-7









 








(g) which directs payment thereof to be sent to a Lock-Box or the Collection Account;





(h) which has not been repurchased by any Originator pursuant to the repurchase
provisions of the Receivables Sale Agreement;





(i) which is not a Defaulted Receivable or Delinquent Receivable;




(j) which has a related Obligor who (i) is not more than 60 days past due on greater than
50% of the aggregate Outstanding Balance of such Receivable and other receivables generated by
the Applicable Originator and (ii) is not the subject of a current Event of Bankruptcy and has
not been the subject of an Event of Bankruptcy during the prior 24 months unless otherwise
agreed to in writing by the Administrator and the Required Purchaser Agents;




(k) which has a related Obligor that is a Person domiciled in the United States of
America;





(l) which was not originated in or subject to the Laws of a jurisdiction whose Laws would
make such Receivable, the related Contract or the sale of the Receivable Interests to the
Purchasers, or the pledge of the security interest to the Administrator (for the benefit of
the Secured Parties), hereunder unlawful, invalid or unenforceable and which is not subject to
any legal limitation on transfer;





(m) which is owned solely by the Seller free and clear of all Liens, except for the Lien
arising in connection with this Agreement;





(n) for which all goods, services, and other products and transactions in connection with
such Receivable have been finally performed or delivered to and accepted by the Obligor
without Dispute;





(o) which does not provide the Obligor with the right to obtain any cash advance
thereunder;




(p) which has not been selected in a manner materially adverse to any Purchaser;





(q) which by its terms requires payment in respect thereof to be made no later than 30
days after the date of the original invoice with respect thereto; provided that up to 5% of
the Receivables may have payment terms between 31 and 60 days and up to 5% of the Receivables
may have payment terms between 61 and 90 days;





(r) which is an eligible asset within the meaning of Rule 3a-7 promulgated under the
Investment Company Act of 1940, as amended from time to time;





(s) which is not of a type that has been disqualified by S&P or Moody’s for any other
reason;





 


I-8









 








(t) which is not payable in installments (except for Receivables related to opening
orders);




(u) which is not evidenced by a promissory note;





(v) which has terms which have not been modified, impaired, waived, altered, extended or
renegotiated since the initial sale or provision of service to an Obligor in any way not
provided for in this Agreement; and





(w) which is not a Government Receivable.




“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any rule or regulation issued thereunder.




“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with Performance Guarantor or ABDC within the meaning of Section 414(b) or (c) of the
Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of
provisions relating to Section 412 of the Internal Revenue Code).




“ERISA Event” means a Reportable Event with respect to a Pension Plan; (b) a complete or
partial withdrawal from a Multiemployer Plan that would result in liability to Performance
Guarantor or any ERISA Affiliate, or the receipt or delivery by Performance Guarantor or any ERISA
Affiliate of any notice with respect to any Multiemployer Plan concerning the imposition of
liability as a result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA; (c) a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (d) the filing pursuant to Code Section 412 or ERISA Section 302 of an
application for a waiver of the minimum funding standard, or the grant of same, with respect to a
Pension Plan; (e) the PBGC or a plan administrator shall, or shall indicate its intention in
writing to the Seller, Performance Guarantor or any ERISA Affiliate to, terminate any Pension Plan
or appoint a trustee to administer any Pension Plan; (f) Performance Guarantor or any ERISA
Affiliate incurs liability under Title IV of ERISA with respect to the termination of any Pension
Plan; or (g) the existence of an accumulated funding deficiency with respect to any Pension Plan
(as defined in Section 302(a) of ERISA and Section 412(a) of the Internal Revenue Code), whether or
not waived.




“Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if either:





(a) a case or other proceeding shall be commenced, without the application or consent of
such Person, in any court, seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of debts of such Person, the
appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like
for such Person or all or substantially all of its assets, or any similar action with respect
to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall continue undismissed, or
unstayed and in effect, for a period of 60 consecutive days; or an order for relief in respect
of such Person shall be entered in an involuntary case under the federal bankruptcy laws or
other similar laws now or hereafter in effect; or





 


I-9









 








(b) such Person shall commence a voluntary case or other proceeding under any applicable
bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now
or hereafter in effect, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee (other than a trustee under a deed of trust, indenture
or similar instrument), custodian, sequestrator (or other similar official) for, such Person
or for any substantial part of its property, or shall make any general assignment for the
benefit of creditors, or shall be adjudicated insolvent, or admit in writing its inability to
pay its debts generally as they become due, or, if a corporation or similar entity, its board
of directors shall vote to implement any of the foregoing.




“Exiting Purchaser” means each Purchaser in a Purchaser Group for which the Facility
Termination Date has occurred, including, without limitation, because such Purchaser Group declined
to extend the Facility Termination Date in accordance with Section 1.6 (it being understood that if
an Exiting Purchaser has multiple Scheduled Facility Termination Dates for its Commitment, then
such Purchaser shall only be considered an Exiting Purchaser to the extent its Invested Amount
exceeds the portion of its Commitment with respect to which the Scheduled Facility Termination Date
has not yet occurred).




“Facility Account” means Seller’s account no. 323185460 at J.P. Morgan Chase Bank.



“Facility Termination Date” means, for any Group Commitment (or portion thereof), the earliest
to occur of: (a) the Scheduled Facility Termination Date for such Group Commitment (or portion
thereof), (b) the Amortization Date and (c) the date the Purchase Limit reduces to zero pursuant to
Section 1.1(b) of the Agreement.



“Federal Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
amended and any successor statute thereto.



“Federal Funds Effective Rate” means, for any period for any Purchaser, a fluctuating interest
rate per annum for each day during such period equal to (i) 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 such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing Quotations for U.S.
Government Securities; or (ii) if such rate is not so published for any day which is a Business
Day, the average of the quotations at approximately 11:30 a.m. (New York time) for such day on such
transactions received by the related Purchaser Agent from three federal funds brokers of recognized
standing selected by it.



“Fee Letter” means each fee letter with respect to this Agreement among Seller, ABDC and the
applicable Purchaser Agent, as it may be amended, restated or otherwise modified and in effect from
time to time.




“Final Facility Termination Date” means the latest Facility Termination Date to occur for all
the Purchaser Groups.





 


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“Final Payout Date” means the date on which all Aggregate Unpaids have been paid in full and
the Purchase Limit has been reduced to zero.



“Finance Charges” means, with respect to a Contract, any finance, interest, late payment
charges or similar charges owing by an Obligor pursuant to such Contract.



“Fiscal Year” shall mean each year ending September 30, which is the fiscal year of the Seller
and the Servicer for accounting purposes.



“Funding Agreement” means (i) this Agreement, (ii) the Liquidity Agreement and (iii) any other
agreement or instrument executed by any Funding Source with or for the benefit of any Conduit
Purchaser.



“Funding Source” means (i) the Administrator, any Purchaser Agent or any Liquidity Provider or
(ii) any insurance company, bank or other funding entity providing liquidity, credit enhancement or
back-up purchase support or facilities to any Conduit Purchaser.



“GAAP” means generally accepted accounting principles in effect in the United States of
America as of the date of this Agreement.



“Government Receivables” shall mean, at the time, any Receivables for which the related
Obligor is the United States of America, any State or local government or any Federal or state
agency or instrumentality or political subdivision thereof.



“Group Commitment” means with respect to any Purchaser Group the aggregate of the Commitments
of each Purchaser within such Purchaser Group.



“Group Invested Amount” means with respect to any Purchaser Group, an amount equal to the
aggregate Invested Amount of all the Purchasers within such Purchaser Group.



“Guarantee” shall mean, as applied to any Indebtedness, (i) a guarantee (other than by
endorsement for collection in the ordinary course of business), direct or indirect, in any manner,
of any part or all of such Indebtedness or (ii) an agreement, direct or indirect, contingent or otherwise,
providing assurance of the payment or performance (or payment of damages in the event of
non-performance) of any part or all of such Indebtedness, including, without limiting the
foregoing, the payment of amounts drawn down by letters of credit. The amount of any Guarantee
shall be deemed to be the maximum amount of the Indebtedness guaranteed for which the guarantor
could be held liable under such Guarantee.



“Incremental Purchase” means a purchase of one or more Receivable Interests which increases
the total outstanding Aggregate Invested Amount hereunder.



“Indebtedness” of any Person shall mean, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are customarily made, (iii) all
obligations of such Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (iv) all



 


I-11









 







obligations of such Person issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary course of business and due
within twelve months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (v) all obligations of such Person under take-or-pay or similar arrangements
or under commodities agreements, (vi) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, provided that for
purposes hereof the amount of such Indebtedness shall be limited to the greater of (A) the amount
of such Indebtedness as to which there is recourse to such Person and (B) the fair market value of
the property which is subject to the Lien, (vii) all Guarantees of such Person, (viii) the
principal portion of all obligations of such Person under Capitalized Leases, (ix) all obligations
of such Person in respect of interest rate protection agreements, foreign currency exchange
agreements, commodity purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements, (x) the maximum amount of all standby letters of credit issued or
bankers’ acceptances facilities created for the account of such Person and, without duplication,
all drafts drawn thereunder (to the extent unreimbursed), (xi) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund
payments are due by a fixed date, (xii) the principal balance outstanding under any securitization
transaction and (xiii) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing product to which
such Person is a party, where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP. The Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, but only to the extent to which there is recourse to such
Person for payment of such Indebtedness.




“Indemnified Amounts” has the meaning specified in Section 10.1.



“Indemnified Party” has the meaning specified in Section 10.1.



“Independent Director” shall mean a member of the Board of Directors of Seller who is not at
such time, and has not been at any time during the preceding five (5) years: (A) a director,
officer, employee or affiliate of Performance Guarantor, any Originator or any of their respective
Subsidiaries or Affiliates (other than Seller), or (B) the beneficial owner (at the time of such
individual’s appointment as an Independent Director or at any time thereafter while serving as an
Independent Director) of any of the outstanding common shares of Seller, any Originator, or any of
their respective Subsidiaries or Affiliates, having general voting rights.



“Interest Period” means with respect to any Receivable Interest funded through a Bank Rate
Funding:



(a) the period commencing on the date of the initial funding of such Receivable Interest
through a Bank Rate Funding and including on, but excluding, the Business Day immediately preceding
the next following Settlement Date; and



 


I-12









 







(b) thereafter, each period commencing on, and including, the Business Day immediately
preceding a Settlement Date and ending on, but excluding, the Business Day immediately preceding
the next following Settlement Date.



“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time and any successor thereto, and the regulations promulgated and rulings issued thereunder.



“Invested Amount” of any Receivable Interest means, at any time, (A) the Purchase Price of
such Receivable Interest paid by the Purchasers, minus (B) the sum of the aggregate amount of
Collections and other payments received by the applicable Purchaser Agent which in each case are
applied to reduce such Invested Amount in accordance with the terms and conditions of this
Agreement; provided that such Invested Amount shall be restored (in accordance with Section 2.5) in
the amount of any Collections or other payments so received and applied if at any time the
distribution of such Collections or payments are rescinded, returned or refunded for any reason.



“Law” shall mean any law (including common law), constitution, statute, treaty, regulation,
rule, ordinance, order, injunction, writ, decree or award of any Official Body.



“LIBO Rate” means, for any Interest Period for any Purchaser (a) (i) the rate per annum
determined on the basis of the offered rate for deposits in U.S. dollars of amounts equal or
comparable to the Invested Amount offered for a term comparable to such Interest Period, which
rates appear on a Bloomberg L.P. terminal, displayed under the address “US0001M <Index> Q
<Go>” effective as of 11:00 A.M., London time, two Business Days prior to the first day of
such Interest Period; provided that if no such offered rates appear on such page, the LIBO Rate for
such Interest Period will be the arithmetic average (rounded upwards, if necessary, to the next
higher 1/100th of 1%) of rates quoted by not less than two major banks in New York, New York,
selected by the Administrator, at approximately 10:00 a.m.(New York time), two Business Days prior
to the first day of such Interest Period, for deposits in U.S. dollars offered by leading European
banks for a period comparable to such Interest Period in an amount comparable to the Invested
Amount, divided by one minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against the Administrator 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 (expressed as a decimal), applicable to such Interest
Period plus (ii) the LIBOR Margin (set forth in the applicable Fee Letter) or (b) any other rate
designated as the “LIBO Rate” for such Purchaser in an Assumption Agreement or Transfer Supplement
pursuant to which such Purchaser becomes a party (as a Purchaser) to the Agreement, or any other
written agreement among such Purchaser to the Seller, the Servicer, the related Purchaser Agent and
the Administrator from time to time. The LIBO Rate shall be rounded, if necessary, to the next
higher 1/16 of 1%.



“Lien” means, in respect of the property of any Person, any ownership interest of any other
Person, any mortgage, deed of trust, hypothecation, pledge, lien, security interest, filing of any
financing statement, charge or other encumbrance or security arrangement of any nature whatsoever,
including, without limitation, any conditional sale or title retention arrangement, and any
assignment, deposit arrangement, consignment or lease intended as, or having the effect of,
security.




 


I-13









 







“Liquidity Agent” means each of the banks acting as agent for the various Liquidity Providers
under each Liquidity Agreement.



“Liquidity Agreement” means any agreement entered into in connection with this Agreement
pursuant to which a Liquidity Provider agrees to make purchases or advances to, or purchase assets
from, any Conduit Purchaser in order to provide liquidity for such Conduit Purchaser’s Purchases.



“Liquidity Commitment” means, as to each Liquidity Provider, its commitment under the
Liquidity Agreement (which generally will equal 102% of its Commitment hereunder).



“Liquidity Provider” means each bank or other financial institution that provides liquidity
support to any Conduit Purchaser pursuant to the terms of a Liquidity Agreement.



“Location” shall mean, with respect to the Seller, any Originator or the Servicer, the place
where the Seller, such Originator or the Servicer, as the case may be, is “located” (within the
meaning of Section 9-103(3)(d), or any analogous provision, of the UCC, in effect in the
jurisdiction whose Law governs the perfection of the Administrator’s (for the benefit of the
Secured Parties) interests in any Purchased Assets.



“Lock-Box” means each locked postal box with respect to which a bank who has executed a
Collection Account Agreement has been granted exclusive access for the purpose of retrieving and
processing payments made on the Receivables and which is listed on Exhibit IV.



“Loss Reserve” means, for any Calculation Period, the product (expressed as a percentage) of
(a) 2.0, times (b) the highest three-month rolling average Default Ratio during the 12 Calculation
Periods ending on the immediately preceding Cut-Off Date, times (c) the Default Horizon Ratio as of
the immediately preceding Cut-Off Date.



“Moody’s” means Moody’s Investors Service, Inc.



“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001 (a) (3)
of ERISA, to which Performance Guarantor or any ERISA Affiliate makes, is making, or is obligated
to make contributions or, during the preceding three calendar years, has made, or been obligated to
make, contributions.



“Net Pool Balance” means, at any time, the aggregate Outstanding Balance of all Eligible
Receivables at such time reduced by (i) the aggregate amount by which the Outstanding Balance of
all Eligible Receivables of each Obligor and its Affiliates exceeds the Obligor Concentration Limit
for such Obligor and (ii) the Rebate Reserve.



“Obligor” shall mean, for any Receivable, each and every Person who purchased goods or
services on credit under a Contract and who is obligated to make payments to an Originator or the
Seller as assignee thereof pursuant to such Contract.



“Obligor Concentration Limit” means, at any time, in relation to the aggregate Outstanding
Balance of Receivables owed by any single Obligor and its Affiliates (if any), the applicable
concentration limit shall be determined as follows for Obligors who have short term unsecured debt
ratings currently assigned to them by S&P and Moody’s (or in the absence thereof, the equivalent
long term unsecured senior debt ratings), the applicable concentration limit shall be determined
according to the following table:




 


I-14









 







	 	 	 	 	 
	 	 	 	 	Allowable % of
	 	 	 	 	Eligible
	S&P Rating	 	Moody’s Rating	 	Receivables
	A-1
	 	P-1
	 	11.00%
	 	 	 	 	 
	A-2
	 	P-2
	 	6.00%
	 	 	 	 	 
	A-3
	 	P-3
	 	3.00%
	 	 	 	 	 
	Below A-3 or not rated 

by either S&P or 

Moody’s
	 	Below P-3 or not rated

by either S&P or

Moody’s
	 	2.50%






; provided that, (a) if any Obligor has a split rating, the applicable rating will be the lower of
the two, (b) if any Obligor is not rated by either S&P or Moody’s, the applicable Obligor
Concentration Limit shall be the one set forth in the last line of the table above, and (c) subject
to satisfaction of the Rating Agency Condition and an increase in the percentage set forth in
clause (a)(i) of the definition of “Required Reserve,” upon Seller’s request from time to time, the
Administrator and each Purchaser Agent may agree to a higher percentage of Eligible Receivables for
a particular Obligor and its Affiliates (each such higher percentage, a “Special Concentration
Limit”), it being understood that any Special Concentration Limit may be cancelled by the
Administrator or any Purchaser Agent upon not less than five (5) Business Days’ written notice to
the Seller. As of the date hereof, Longs Drug Stores Corporation and AdvancePCS, Inc. shall have a
Special Concentration Limit of 8.0% and 5.5%, respectively.



“Official Body” shall mean any government or political subdivision or any agency, authority,
bureau, central bank, commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic.



“Originator” means each of ABDC and the other Persons, if any, party to the Receivables
Purchase Agreement from time to time as a seller.



“Outstanding Balance” of any Receivable at any time means the then outstanding principal
balance thereof.



“Participant” has the meaning set forth in Section 12.2.



“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.



“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV
of ERISA which Performance Guarantor or any ERISA Affiliate of Performance Guarantor sponsors or
maintains, or to which Performance Guarantor or any of its ERISA Affiliates makes, is making, or is
obligated to make contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five
plan years.



“Performance Guarantor” means AmerisourceBergen.



 


I-15









 







“Performance Undertaking” means that certain Performance Undertaking, dated as of July 10,
2003 by Performance Guarantor in favor of Seller, substantially in the form of Exhibit XII, as the
same may be amended, restated or otherwise modified from time to time.



“Person” means an individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.



“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which Performance
Guarantor or any of its ERISA Affiliates sponsors or maintains or to which Performance Guarantor or
any of its ERISA Affiliates makes, is making, or is obligated to make contributions and includes
any Pension Plan, other than a Plan maintained outside the United States primarily for the benefit
of Persons who are not U.S. residents.



“Pledge Agreement” shall mean the Pledge Agreement dated as of August 29, 2001, among
AmerisourceBergen, each Subsidiary of AmerisourceBergen party thereto from time to time and The
Chase Manhattan Bank, as Collateral Agent, as the same may from time to time be amended,
supplemented or otherwise modified.



“Prime Rate” means, for any day for any Purchaser, a rate per annum equal to the prime rate of
interest announced from time to time by the related Purchaser Agent (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate changes.



“Proposed Reduction Date” has the meaning set forth in Section 1.3.



“Purchase” means an Incremental Purchase or a Reinvestment.



“Purchase Date” means each Business Day on which a Purchase is made hereunder.



“Purchase Limit” means $1,050,000,000, as such amount may be reduced pursuant to Section
1.1(b) of the Agreement or otherwise in connection with any Exiting Purchaser. References to the
unused portion of the Purchase Limit shall mean, at any time, the Purchase Limit minus the then
outstanding Aggregate Investment.



“Purchase Notice” has the meaning set forth in Section 1.2.



“Purchase Price” means, with respect to any Incremental Purchase of a Receivable Interest, the
amount paid to Seller for such Receivable Interest which shall not exceed the least of (i) the
amount requested by Seller in the applicable Purchase Notice, (ii) the unused portion of the
Purchase Limit on the applicable purchase date and (iii) the excess, if any, of the Net Pool
Balance less the Required Reserve on the applicable purchase date over the aggregate outstanding
amount of Aggregate Invested Amount determined as of the date of the most recent Settlement Report,
without taking into account such proposed Incremental Purchase.



“Purchased Assets” means all of Seller’s right, title and interest, whether now owned and
existing or hereafter arising in and to all of the Receivables, the Related Security, the
Collections and all proceeds of the foregoing.



 


I-16









 







“Purchaser” means each Conduit Purchaser and/or each Related Committed Purchaser, as
applicable.



“Purchaser Agent” means each Person acting as agent on behalf of a Purchaser Group and
designated as a Purchaser Agent for such Purchaser Group on the signature pages to the Agreement or
any other Person who becomes a party to this Agreement as a Purchaser Agent pursuant to an
Assumption Agreement or a Transfer Supplement.




“Purchaser Group” means, for each Conduit Purchaser (or Purchaser Agent), such Conduit
Purchaser, its Related Committed Purchasers (if any) and its related Purchaser Agent (and, to the
extent applicable, its related Funding Sources and Indemnified Parties).



“Purchasers’ Portion” means, on any date of determination, the sum of the percentages
represented by the Receivable Interests of the Purchasers (other than any Exiting Purchasers).



“Ratable Share” means, for each Purchaser Group (other than those comprised of Exiting
Purchasers), such Purchaser Group’s Group Commitments divided by the aggregate Group Commitments of
all Purchaser Groups (other than those comprised of Exiting Purchasers).



“Rating Agency Condition” means that each Conduit Purchaser has received written notice from
the rating agencies then rating its Commercial Paper that an amendment, a change or a waiver will
not result in a withdrawal or downgrade of the then current ratings of such Commercial Paper;
provided that, if the applicable Purchaser Agent notifies the Seller, the Servicer and the
Administrator that such Conduit Purchaser is not required to obtain such notice prior to the
effectiveness of such amendment, change or waiver, the “Rating Agency Condition” with respect to
such Conduit Purchaser shall mean the consent of such Purchaser Agent (which consent shall only be
withheld if such Purchaser Agent reasonably believes that such amendment, change or waiver would
result in a withdrawal or downgrade of the then current ratings of such Commercial Paper).



“Rebate Reserve” means an amount equal to the accounting reserve for rebates on the
Receivables determined in the ordinary course of business in accordance with GAAP according to
policies consistently applied (and consistent with the Originators’ practices in effect on the date
hereof) and reported on the Settlement Report related to, or in anticipation of, rebates affecting
the Receivables.



“Receivable” means all indebtedness and other obligations owed to Seller or any Originator (at
the time it arises, and before giving effect to any transfer or conveyance under the Receivables
Sale Agreement) or in which Seller or an Originator has a security interest or other interest,
including, without limitation, any indebtedness, obligation or interest constituting an account,
chattel paper, instrument or general intangible, arising in connection with the sale of goods or
the rendering of services by an Originator, and further includes, without limitation, the
obligation to pay any Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including, without limitation, indebtedness and other
rights and obligations represented by an individual invoice, shall constitute a Receivable separate
from a Receivable consisting of the indebtedness and other rights and obligations



 


I-17









 







arising from any other transaction; provided that any indebtedness, rights or obligations referred
to in the immediately preceding sentence shall be a Receivable regardless of whether the account
debtor or Seller treats such indebtedness, rights or obligations as a separate payment obligation.




“Receivable Interest” means, at any time, an undivided percentage ownership interest (computed
as set forth below) associated with a designated amount of Invested Amount, selected pursuant to
the terms and conditions hereof in (i) each Receivable arising prior to the time of the most recent
computation or recomputation of such undivided interest, (ii) all Related Security with respect to
each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such
Receivable. Each such undivided percentage interest shall equal:



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	RR	 	 	 	 	 	 
	 

	 	IA x (1 +
	 	___	 	)	 	 	 
	 

	 	 	 	AIA	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	NPB 






where:



	 	 	 	 	 	 	 
	 

	 	IA
	 	=
	 	the Invested Amount of such Receivable Interest.
	 

	 	AIA
	 	=
	 	the Aggregate Invested Amount.
	 

	 	NPB
	 	=
	 	the Net Pool Balance.
	 

	 	RR
	 	=
	 	the Required Reserve.






Such undivided percentage ownership interest shall be initially computed on its date of purchase.
Thereafter, until the Final Facility Termination Date, each Receivable Interest shall be
automatically recomputed (or deemed to be recomputed) on each day prior to the Final Facility
Termination Date. The variable percentage represented by any Receivable Interest as computed (or
deemed recomputed) as of the close of the business day immediately preceding the Final Facility
Termination Date shall remain constant at all times thereafter.



“Receivables Sale Agreement” means that certain Receivables Sale Agreement, dated as of July
10, 2003, among each Originator and Seller, as the same may be amended, restated or otherwise
modified from time to time.



“Records” means, with respect to any Receivable, all Contracts and other documents, books,
records and other information (including, without limitation, computer programs, tapes, disks,
punch cards, data processing software and related property and rights) relating to such Receivable,
any Related Security therefor and the related Obligor.



“Recourse Obligations” has the meaning set forth in Section 2.1.



“Reduction Notice” has the meaning set forth in Section 1.3.



“Regulatory Change” means any change after the date of this Agreement in United States
(federal, state or municipal) or foreign laws, regulations (including Regulation D) or accounting
principles or the adoption or making after such date of any interpretations,



 


I-18









 







directives or requests applying to a class of banks (including the Liquidity Providers) of or under
any United States (federal, state or municipal) or foreign laws, regulations (whether or not having
the force of law) or accounting principles by any court, governmental or monetary authority, or
accounting board or authority (whether or not part of government) charged with the establishment,
interpretation or administration thereof. For the avoidance of doubt, any interpretation of
Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board shall constitute a
Regulatory Change.




“Reinvestment” has the meaning set forth in Section 2.2.



“Related Committed Purchaser” means each Person listed as such (and its respective Commitment)
for each Conduit Purchaser as set forth on the signature pages of the Agreement or in any
Assumption Agreement or Transfer Supplement.



“Related Security” means, with respect to any Receivable:




(i) all of Seller’s interest in the inventory and goods (including returned or
repossessed inventory or goods), if any, the sale of which by an Originator gave rise to such
Receivable, and all insurance contracts with respect thereto,




(ii) all other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with all financing statements and
security agreements describing any collateral securing such Receivable,




(iii) all guaranties, letters of credit, insurance and other agreements or arrangements
of whatever character from time to time supporting or securing payment of such Receivable
whether pursuant to the Contract related to such Receivable or otherwise,




(iv) all service contracts and other contracts and agreements associated with such
Receivable,



(v) all Records related to such Receivable,




(vi) all of Seller’s right, title and interest in, to and under the Receivables Sale
Agreement in respect of such Receivable and all of Seller’s right, title and interest in, to
and under the Performance Undertaking,



(vii) all of Seller’s right, title and interest in and to the Demand Advances, and



(viii) all proceeds of any of the foregoing.



“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.



 


I-19









 







“Required Purchaser Agents” means, at any time, two or more Purchaser Agents representing
Purchasers whose Commitments aggregate more than 50% of the aggregate of the Commitments of all
Purchasers.



“Required Reserve” means, on any day during a Calculation Period, the product of (a) the
greater of (i) the Required Reserve Factor Floor and (ii) the sum of the Loss Reserve, the Yield
Reserve, the Dilution Reserve and the Servicing Reserve, times (b) the Net Pool Balance as of the
Cut-Off Date immediately preceding such Calculation Period.



“Required Reserve Factor Floor” means, for any Calculation Period, the sum (expressed as a
percentage) of (a) 18.5% plus (b) the product of the Adjusted Dilution Ratio and the Dilution
Horizon Ratio, in each case, as of the immediately preceding Cut-Off Date.



“Responsible Officer” shall mean, with respect to the Seller, the Servicer, any Originator or
the Performance Guarantor, the chief executive officer, president, principal financial officer or
treasurer of such Person and any other Person identified on the List of Responsible Officers
attached as Exhibit XIII hereto (as such list may be amended and supplemented from time to time)
and agreed to by the Administrator.



Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of capital stock of Seller now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock or in any junior class of stock
of Seller, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of capital stock of Seller now or hereafter outstanding,
(iii) any payment or prepayment of principal of, premium, if any, or interest, fees or other
charges on or with respect to, and any redemption, purchase, retirement, defeasance, sinking fund
or similar payment and any claim for rescission with respect to the Subordinated Loans (as defined
in the Receivables Sale Agreement), (iv) any payment made to redeem, purchase, repurchase or
retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of capital stock of Seller now or hereafter outstanding, and (v) any payment of
management fees by Seller (except for reasonable management fees to any Originator or its
Affiliates in reimbursement of actual management services performed).




“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc.



“Scheduled Facility Termination Date” means, for any Group Commitment (or portion thereof),
the “Scheduled Facility Termination Date” set forth therefor on the signature page hereof (or in
the applicable Assumption Agreement or Transfer Supplement), subject to any extension thereof
pursuant to Section 1.6 of the Agreement.



“Secured Parties” means the Indemnified Parties.



“Security Agreement” shall mean the Security Agreement dated as of August 29, 2001, among ABDC
Bergen, each Subsidiary of ABDC Bergen party thereto from time to time and The Chase Manhattan
Bank, as Collateral Agent, as the same may from time to time be amended, supplemented or otherwise
modified.



 


I-20









 







“Seller” has the meaning set forth in the preamble to this Agreement.



“Seller Parties” has the meaning set forth in the preamble to this Agreement.



“Servicer” means at any time the Person (which may be the Administrator) then authorized
pursuant to Article VIII to service, administer and collect Receivables.



“Servicing Fee” means, for each day in a Calculation Period:




(a) an amount equal to (i) the Servicing Fee Rate times (ii) the aggregate Outstanding
Balance of all Receivables at the close of business on the Cut-Off Date immediately preceding
such Calculation Period, times (iii) 1/360; or




(b) on and after the Servicer’s reasonable request made at any time when ABDC or one of
its Affiliates is no longer acting as Servicer hereunder, an alternative amount specified by
the successor Servicer not exceeding (i) 110% of such Servicer’s reasonable costs and expenses
of performing its obligations under this Agreement during the preceding Calculation Period,
divided by (ii) the number of days in the current Calculation Period.



“Servicing Fee Rate” means 1.0% per annum; provided that if ABDC or one of its Affiliates is
the Servicer, such rate shall mean 0.125% per annum.



“Servicing Reserve” means, for any Calculation Period, the product (expressed as a percentage)
of (a) the Servicing Fee Rate (determined assuming ABDC is not the Servicer), times (b) a fraction,
the numerator of which is the highest Days Sales Outstanding for the most recent 12 Calculation
Periods and the denominator of which is 360.




“Settlement Date” means the 2nd Business Day after each Settlement Reporting Date.



“Settlement Report” means a report, in substantially the form of Exhibit VIII hereto
(appropriately completed), together with the electronic backup data which is part of the
spreadsheet that creates such report, furnished by the Servicer to the Administrator and each
Purchaser Agent pursuant to Section 8.5.



“Settlement Reporting Date” means the last day of each month immediately following the Cut-Off
Date (or if any such day is not a Business Day, the next succeeding Business Day thereafter) or
such other days of any month as Administrator or any Purchaser Agent may request in connection with
Section 8.5.



“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities
having ordinary voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, association, limited liability company, joint venture
or similar business organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.




 


I-21









 







“Transaction Documents” means, collectively, this Agreement, each Purchase Notice, the
Receivables Sale Agreement, each Collection Account Agreement, the Performance Undertaking, the Fee
Letters, each Subordinated Note (as defined in the Receivables Sale Agreement) and all other
instruments, documents and agreements executed and delivered in connection herewith by any of the
Seller Parties.



“Transfer Supplement” has the meaning set forth in Section 12.1(c).



“UCC” means the Uniform Commercial Code as from time to time in effect in the specified
jurisdiction.



“Unmatured Amortization Event” means an event which, with the passage of time or the giving of
notice, or both, would constitute an Amortization Event.



“Wachovia” means Wachovia Bank, National Association in its individual capacity and its
successors.



“Yield” means for each Interest Period relating to a Receivable Interest funded through a Bank
Rate Funding, an amount equal to the product of the applicable Yield Rate for such Receivable
Interest multiplied by the Invested Amount of such Receivable Interest for each day elapsed during
such Interest Period, annualized on a 360 day basis.



“Yield Rate” means, with respect to each Receivable Interest funded through a Bank Rate
Funding, the LIBO Rate, the Alternate Base Rate or the Default Rate, as applicable.



“Yield Reserve” means, for any Calculation Period, the product (expressed as a percentage) of
(i) 1.5 times (ii) the Alternate Base Rate as of the immediately preceding Cut-Off Date
times (iii) a fraction the numerator of which is the highest Days Sales Outstanding for the
most recent 12 Calculation Periods and the denominator of which is 360.



All accounting terms not specifically defined herein shall be construed in accordance with
GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined
herein, are used herein as defined in such Article 9.



 


I-22









 







EXHIBIT II




FORM OF PURCHASE NOTICE



 






Amerisource Receivables Financial Corporation




PURCHASE NOTICE

dated 
_____, 20___

for Purchase on 
_____, 20___






Wachovia Bank, National Association, as Administrator

191 Peachtree Street, N.E., GA-8047

Atlanta, Georgia 30303



Attention: Cecil Noble, Fax No. (404) 332-5152



[Address to each Purchaser Agent]



Ladies and Gentlemen:




Reference is made to the Receivables Purchase Agreement dated as of July 10, 2003 (as amended,
supplemented or otherwise modified from time to time, the “Agreement”) among Amerisource
Receivables Financial Corporation (the “Seller”), AmerisourceBergen Drug Corporation, as initial
Servicer, the various Purchaser Groups from time to time party thereto, and Wachovia Bank, National
Association, as Administrator. Capitalized terms defined in the Agreement are used herein with the
same meanings.



1. The [Servicer, on behalf of the] Seller hereby certifies, represents and warrants to the
Administrator, each Purchaser Agent and each Purchaser that on and as of the Purchase Date (as
hereinafter defined):




(a) all applicable conditions precedent set forth in Article VI of the Agreement have
been satisfied;




(b) each of its representations and warranties contained in Article V of the Agreement
will be true and correct, in all material respects, as if made on and as of the Purchase Date;




(c) no event will have occurred and is continuing, or would result from the requested
Purchase, that constitutes an Amortization Event or Unmatured Amortization Event;




(d) the applicable Facility Termination Date has not occurred; and





 


II-1









 








(e) after giving effect to the Purchase requested below, does not exceed the limits set
forth in Section 1.1(a) of the Agreement.



2. The [Servicer, on behalf of the] Seller hereby requests that the Purchasers make a Purchase
on
_____, 20___

(the “Purchase Date”) as follows:



(a) Purchase Price: $_____





(b) Ratable Share:



	 	 	 	 	 
	(i) Blue Ridge Asset Funding Corporation’s Purchaser Group:
	 	$	                    	 
	 	 	 	 	 
	(ii) EagleFunding Capital Corporation’s Purchaser Group:
	 	$	                    	 
	 	 	 	 	 
	(iii) Liberty Street Funding Corp.’s Purchaser Group:
	 	$	                    	 
	 	 	 	 	 
	(iv) Atlantic Asset Securitization Corp.’s Purchaser Group:
	 	$	                    	 
	 	 	 	 	 
	(v) Market Street Funding Corporation’s Purchaser Group:
	 	$	                    	 







(c) If the Purchase is funded with a Bank Rate Funding, [Servicer on behalf of the]
Seller requests that the Invested Amount (which will initially accrue Yield at the Alternate
Base Rate) begin to accrued Yield at a LIBO Rate for an Interest Period of
  months on the third Business Day after the Purchase Date).



3. Please disburse the proceeds of the Purchase as follows:




[Apply
$_____

to payment of Aggregate Unpaids due on the Purchase Date].
[Wire transfer $_____

to the Facility Account.]



IN WITNESS WHEREOF, the Servicer, on behalf of the Seller has caused this Purchase Request to
be executed and delivered as of this
_____ day of
_____, _____.



	 	 	 	 	 
	 	[AmerisourceBergen Drug Corporation, as Servicer, on behalf of:]

Amerisource Receivables Financial Corporation, as Seller

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


II-2









 







EXHIBIT III




PLACES OF BUSINESS OF THE SELLER PARTIES; LOCATIONS OF RECORDS;




FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)




Name of Seller:





Amerisource Receivables Financial Corporation



Location of Books and Records:




	 	 	 
	Name of Location	 	Address/Location of Records
	 
	 	 
	Chesterbrook

	 	1300 Morris Drive, Suite 100, Chesterbrook, PA 19087
	Orange

	 	4000 Metropolitan Drive, Orange, CA 92868
	 
	 	 
	Atlanta

	 	1085 Satellite Blvd., Suwanee, GA 30024
	Birmingham

	 	172 Cahaba Valley Pkwy., Pelham, AL 35124
	Boston

	 	101 Norfolk Street, Mansfield, MA 02048
	Chicago

	 	980 Lombard Road, Lombard, IL 60148
	Columbus

	 	1200 E. 5th Avenue, Columbus, OH 43219
	Corona

	 	1851 California Avenue, Corona, CA 92881
	Dallas

	 	1229 Avenue R, Grand Prairie, TX 75050
	Dallas

	 	1841 Monetary Lane, Carrollton, TX 75006
	Denver

	 	501 W. 44th Avenue, Denver, CO 80216
	Honolulu

	 	238 Sand Island Access Rd. #M1, Honolulu, HI 96819
	Houston

	 	12727 W. Airport Blvd., Sugar Land, TX 77478
	Johnson City

	 	410 Princeton Road, Johnson City, TN 37601
	Kansas City

	 	1501 Southern Road, Kansas City, MO 64120
	Louisville (Pharmabuy)

	 	7841 National Turnpike, Louisville, KY 40214
	Louisville

	 	244 E. Woodlawn Ave., Louisville, KY 40214
	Meridian

	 	6300 St. Louis Street, Meridian, MS 39301
	Minneapolis

	 	6810 Shady Oak Rd., Eden Prairie, MN 55344
	Mishawaka

	 	1655 E. 12th Street, Mishawaka, IN 46544
	Mobile

	 	85 Sidney Phillips Drive, Mobile, AL 36607
	Montgomery

	 	2061 W. Fairview Ave., Montgomery, AL 36108
	Nashville

	 	12980 Old Hickory Rd., Antioch, TN 37013
	Orlando

	 	2100 Directors Row, Orlando, FL 32809-6234
	Orlando

	 	2702 Directors Row, Orlando, FL 32809
	Paducah

	 	322 North 3rd Street, Paducah, KY 42001
	Phoenix

	 	1825 S. 43rd Avenue, Phoenix, AZ 85009
	Pinebrook

	 	Rte. 80 @ Hook Mountain Rd., Pine Brook, NJ 07058
	Raleigh

	 	8605 Ebenezer Church Rd., Raleigh, NC 27613
	Richmond

	 	9900 J.E.B. Stuart Pkwy., Glen Allen, VA 23060
	Rita Ann

	 	8410 B Kelso Drive, Baltimore, MD 21221
	Sacramento Admin Office

	 	2520 Venture Oaks Way, Suite 140, Sacramento, CA 95833
	Salt Lake City

	 	1765 Fremont Drive, Salt Lake City, UT 84104
	San Antonio

	 	1949 Hormel Drive, San Antonio, TX 78219
	San Jose

	 	450 Charcot Avenue, San Jose, CA 95131
	Seattle

	 	19220 64th Avenue South, Kent, WA 98032
	St. Joseph

	 	3907 S. 48th Terrace, St. Joseph, MO 64503
	St. Louis

	 	8190 Lackland Road, St. Louis, MO 63114-4524
	Tulsa

	 	9401 E. 54th Street, Tulsa, OK 74145
	Thorofare

	 	100 Friars Lane, Thorofare, NJ 08086
	Toledo

	 	3145 Nebraska Avenue, Toledo, OH 43607
	Valencia

	 	24903 Avenue Kearny, Valencia, CA 91355
	Williamston

	 	One Industrial Park, Williamston, MI 48895






Legal, Trade and Assumed Names:


AmeriSource Receivables Financial Corporation



Corporate Information Regarding the Seller




	 	 	 	 	 
	Federal Tax Identification Number: 23-2999097

	 	 	 	 
	Delaware Corporation Organization Number: 3031303

	 	 	 	 








 


III-1









 





EXHIBIT IV




NAMES OF COLLECTION BANKS; LOCK-BOXES & COLLECTION ACCOUNTS




[SEE ATTACHED]




 


IV-1









 








AMERISOURCEBERGEN CORPORATION

EXHIBIT A




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company	 	Division	 	Bank	 	Account #	 	 	Account Name	 	Type	 	 	Lockbox(es)	 	 	Status
	Amerisource Receivables Financial Corporation
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARFC
	 	Rita Ann- Baltimore, MD	 	Allfirst Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation — Rita Ann	 	Depository	 	 	1596	 	 	Open
	ARFC
	 	Corp- Chesterbrook, PA	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Master	 	 	NA	 	 	Open
	ARFC
	 	Birmingham, AL	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	403279	 	 	Open
	ARFC
	 	Columbus, OH	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	12581	 	 	Open
	 
	 	Toledo/Louisville	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARFC
	 	Dallas, TX	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	8410046	 	 	Open
	ARFC
	 	Mishawaka, IN	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	12571	 	 	Open
	ARFC
	 	Orlando, FL	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	502978/403163	 	 	Open
	ARFC
	 	Johnson City, TN	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	502964	 	 	Open
	ARFC
	 	Minneapolis, MN	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	502620	 	 	Open
	ARFC
	 	Paducah, KY	 	Bank of America	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	503270	 	 	Open
	ARFC
	 	Columbus, OH	 	Bank One	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	0813	 	 	Open
	 
	 	Toledo, OH	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARFC
	 	St. Joseph, MO	 	Commerce Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	802240	 	 	Open
	ARFC
	 	Mishawaka, IN	 	First Source Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	4181	 	 	TBC March 2003
	ARFC
	 	Thorofare, NJ	 	First Union Nat’l Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	52598	 	 	Open
	ARFC
	 	Corp- Chesterbrook, PA	 	First Union Nat’l Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	NA	 	 	Open
	ARFC
	 	Corp- Chesterbrook, PA	 	First Union Nat’l Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Master	 	 	NA	 	 	Open
	ARFC
	 	Thorofare, NJ	 	First Union Nat’l Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	8500-41950	 	 	Open
	ARFC
	 	Springfield, MA	 	First Union Nat’l Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	54873	 	 	Open
	ARFC
	 	Corp- Chesterbrook	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	NA	 	 	Open
	ARFC
	 	Hawaii	 	Bank of Hawaii	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	31000-5356	 	 	Open
	ARFC
	 	Chicago, IL	 	Bank One	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	21978, 100708,	 	 	Open
	 
	 	Corona, CA	 	 	 	 	 	 	 	 	 	 	 	 	22016, 22103,	 	 	 
	 
	 	Denver, CO	 	 	 	 	 	 	 	 	 	 	 	 	100459, 100741,	 	 	 
	 
	 	Kansas City, MO	 	 	 	 	 	 	 	 	 	 	 	 	21983, 100801,	 	 	 
	 
	 	Phoenix, AZ	 	 	 	 	 	 	 	 	 	 	 	 	100491, 24900,	 	 	 
	 
	 	Sacramento, CA	 	 	 	 	 	 	 	 	 	 	 	 	730034, 100806,	 	 	 
	 
	 	Salt Lake City, UT	 	 	 	 	 	 	 	 	 	 	 	 	27550	 	 	 
	 
	 	San Jose, CA	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Seattle, WA	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	St. Louis, MO	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Tulsa, OK	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Valencia, CA	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Williamston, MI	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARFC
	 	Corp-Orange, CA	 	Chase Manhattan Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Master	 	 	NA	 	 	Open
	ARFC
	 	Corp-Orange, CA	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Master	 	 	NA	 	 	Open
	ARFC
	 	Atlanta, GA	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	530431, 642723,	 	 	Open
	 
	 	Boston, MA	 	 	 	 	 	 	 	 	 	 	 	 	676337, 676380,	 	 	 
	 
	 	Dallas, TX	 	 	 	 	 	 	 	 	 	 	 	 	530439, 530448,	 	 	 
	 
	 	Houston, TX	 	 	 	 	 	 	 	 	 	 	 	 	530456, 530463,	 	 	 
	 
	 	Meridian, MS	 	 	 	 	 	 	 	 	 	 	 	 	530477, 642755.	 	 	 
	 
	 	Mobile, AL	 	 	 	 	 	 	 	 	 	 	 	 	530494, 642800,	 	 	 
	 
	 	Montgomery, AL	 	 	 	 	 	 	 	 	 	 	 	 	676405	 	 	 
	 
	 	Nashville, TN	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Orlando, FL	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Pine Brook, NJ	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Raleigh, NC	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Richmond, VA	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	San Antonio, TX	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARFC
	 	Kansas City, KS	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	771732	 	 	Open
	ARFC
	 	Tulsa, OK	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	667604	 	 	Open
	ARFC
	 	Mansfield, MA	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	643393	 	 	Open
	ARFC
	 	Raleigh, NC	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	643364	 	 	Open
	ARFC
	 	Richmond, VA	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	643376	 	 	Open
	ARFC
	 	Corp-Orange, CA	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	NA	 	 	Open
	ARFC
	 	PharmaBuy	 	PNC Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	771530	 	 	Open
	 
	 	Louisville, KY	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARFC
	 	Corp-Orange, CA	 	Wells Fargo Bank	 	 	 	 	 	Amerisource Receivables Financial Corporation	 	Depository	 	 	77825	 	 	Open








 














 





EXHIBIT V




FORM OF COMPLIANCE CERTIFICATE




To: Wachovia Bank, National Association, as Administrator



This Compliance Certificate is furnished pursuant to that certain Receivables Purchase
Agreement dated as of July 10, 2003 among Amerisource Receivables Financial Corporation (the
“Seller”), AmerisourceBergen Drug Corporation (the “Servicer”), the various Purchaser Groups from
time to time party thereto and Wachovia Bank, National Association, as Administrator (the
“Agreement”).



THE UNDERSIGNED HEREBY CERTIFIES THAT:



1. I am the duly elected _____ of Seller.



2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under
my supervision, a detailed review of the transactions and conditions of Seller and its Subsidiaries
during the accounting period covered by the attached financial statements.



3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or event which constitutes an Amortization Event or Unmatured
Amortization Event, as each such term is defined under the Agreement, during or at the end of the
accounting period covered by the attached financial statements or as of the date of this
Certificate[, except as set forth in paragraph 5 below].



4. Schedule I attached hereto sets forth financial data and computations evidencing the
compliance with Section 9.1(o) and certain covenants of the Agreement, all of which data and
computations are true, complete and correct.



[5. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and the action which
Seller has taken, is taking, or proposes to take with respect to each such condition or event:
_____]



The foregoing certifications, together with the computations set forth in Schedule I hereto and the
financial statements delivered with this Certificate in support hereof, are made and delivered as
of
_____, 20___.




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


V-1









 







SCHEDULE I TO COMPLIANCE CERTIFICATE





A. Schedule of Compliance as of
_____,
_____
with Section _____
of the Agreement. Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.



This schedule relates to the month ended: _____







 


Sch. I









 





EXHIBIT VI




FORM OF COLLECTION ACCOUNT AGREEMENT




COLLECTION ACCOUNT AGREEMENT




_______, 2003




[Collection Bank Name]

[Collection Bank Address]



Attn:
_____


Fax No.
(_____) ____






Re: [Name of current Lock-Box owner]/Amerisource Receivables Financial Corporation



Ladies and Gentlemen:




Reference is hereby made to each of the [departmental] post office boxes listed on Schedule 1
hereto (each, a “Lock-Box”) of which [Collection Bank Name], a
_____
banking association (hereinafter “you”), has exclusive control for the purpose of receiving
mail and processing payments therefrom pursuant to the [Lock-Box Service Agreement] dated
_____, originally by and between Amerisource Bergen Drug Corporation (the
“Company”) and you (the “Service Agreement”).



1. You hereby confirm your agreement to perform the services described therein. Among the
services you have agreed to perform therein, is to endorse all checks and other evidences of
payment received in each of the Lock-Boxes, and credit such payments to account no.
_____
(the “Lock-Box Account”).



2. The Company hereby informs you that it has transferred to its affiliate, Amerisource
Receivables Financial Corporation, a Delaware corporation (the “Seller”) all of the
Company’s right, title and interest in and to the items from time to time received in the
Lock-Boxes and/or deposited in the Lock-Box Account, but that the Company has agreed to continue to
service the receivables giving rise to such items. Accordingly, the Company and Seller hereby
request that the name of the Lock-Box Account be changed to “Amerisource Receivables Financial
Corporation.” Seller hereby further advises you that it has pledged the receivables giving rise to
such items to Wachovia Bank, National Association, as Administrator for various parties (in such
capacity, the “Administrator”) and has granted a security interest to the Administrator in
all of Seller’s right, title and interest in and to the Lock-Box Account and the funds therein.



3. Each of the Company and Seller hereby irrevocably instructs you, and you hereby agree, that
upon receiving notice from the Administrator in the form attached hereto as Annex A:




 


VI-1









 







(i) the name of the Lock-Box Account will be changed to “Wachovia Bank, National Association,
as Administrator” (or any designee of the Administrator), and the Administrator will have exclusive
ownership of and access to the Lock-Boxes and the Lock-Box Account, and none of the Company,
Seller, nor any of their respective affiliates will have any control of the Lock-Boxes or the
Lock-Box Account or any access thereto, (ii) you will either continue to send the funds from the
Lock-Boxes to the Lock-Box Account, or will redirect the funds as the Administrator may otherwise
request, (iii) you will transfer monies on deposit in the Lock-Box Account to the following
account:



	 	 	 	 	 
	 

	 	Bank Name:
	 	Wachovia Bank, National Association
	 

	 	Location:
	 	Charlotte, North Carolina
	 

	 	ABA Routing No.:
	 	ABA # 053000219
	 

	 	Credit Account No.:
	 	For credit to Blue Ridge Asset Funding Account
#2000010384921
	 

	 	Account Name:
	 	CP Liability Account
	 

	 	Reference:
	 	Blue Ridge/Amerisource Receivables Financial
Corporation
	 

	 	Attention:
	 	Sherry McInturf, tel. (704) 715-1125






or to such other account as the Administrator may specify, (iv) all services to be performed by you
under the Service Agreement will be performed on behalf of the Administrator, and (v) all
correspondence or other mail which you have agreed to send to the Company or Seller will be sent to
the Administrator at the following address:



	 	 	 
	 

	 	Wachovia Bank, National Association, as Administrator

191 Peachtree Street

Mail Stop GA-8047

Atlanta, GA 30303

Attn: Cecil Noble,

Asset-Backed Finance

FAX: (404) 332- 5152






Moreover, upon such notice, the Administrator will have all rights and remedies given to the
Company (and Seller, as the Company’s assignee) under the Service Agreement. The Company agrees,
however, to continue to pay all fees and other assessments due thereunder at any time.



4. In addition, as collateral security for Seller’s obligations to the Administrator and
certain other persons in connection with the Receivables Purchase Agreement, Seller hereby grants
to the Administrator a present and continuing security interest in (a) the Lock-Box Account, (b)
all general intangibles and privileges in respect of the Lock-Box Account, and (c) all cash,
checks, money orders and other items of value of Seller now or hereafter paid, deposited, credited,
held (whether for collection, provisionally or otherwise) or otherwise, in your possession, under
your control, or in transit to you or any of your agents, bailees or custodians in respect of the
Lock-Box Account, and all proceeds of the foregoing (collectively, “Receipts”). You hereby
acknowledge and agree that (i) the Administrator has “Control” (as contemplated in §9-104 of the
applicable UCC) of the Lock-Box Account and you are required to comply with the instructions of the
Administrator directing disposition of the funds in the Lock-Box Account without further consent by
AmeriSource Corporation, the



 


VI-2









 







Servicer, Seller or any affiliate thereof and (ii) you shall at all times maintain the Lock-Box
Account as a “Deposit Account” (as defined in §9-102 of the applicable UCC). The Administrator
hereby appoints you as the Administrator’s bailee for the Lock-Box Account and all Receipts for the
purpose of perfecting the Administrator’s security interest in such collateral, and you hereby
accept such appointment and agree to be bound by the terms of this letter agreement. Seller hereby
agrees to such appointment and further agrees that you, on behalf of the Administrator, shall be entitled to exercise, as directed in accordance
with the terms of this letter agreement, any and all rights which the Administrator may have in
connection with the transactions referenced in the first paragraph of this letter agreement or
under applicable law with respect to the Lock-Box Account, all Receipts and all other collateral
described in this paragraph.



5. You hereby agree not to institute or join any other person or entity in instituting, any
suit pursuant to Title 11, United States Code, or any similar suit or proceeding under then
applicable state or federal law providing for the relief of debtors or the protection of creditors,
against Seller prior to the date which is one year and one day after payment of all obligations of
Seller to the Administrator (and the parties for which it is acting as agent) are paid in full.
This section shall survive any termination of this letter agreement.



6. You hereby acknowledge that monies deposited in the Lock-Box Account or any other account
established with you by the Administrator for the purpose of receiving funds from the Lock-Boxes
are subject to the liens of the Administrator, and will not be subject to deduction, set-off,
banker’s lien or any other right you or any other party may have against the Company or Seller
except that you may debit the Lock-Box Account for any items deposited therein that are returned or
otherwise not collected and for all charges, fees, commissions and expenses incurred by you in
providing services hereunder, all in accordance with your customary practices for the charge back
of returned items and expenses.



7. You will be liable only for direct damages in the event you fail to exercise ordinary care.
You shall be deemed to have exercised ordinary care if your action or failure to act is in
conformity with general banking usages or is otherwise a commercially reasonable practice of the
banking industry. You shall not be liable for any special, indirect or consequential damages, even
if you have been advised of the possibility of these damages.



8. The parties acknowledge that you may assign or transfer your rights and obligations
hereunder solely to a wholly-owned subsidiary of [insert name of Collection Bank’s holding
company].



9. Seller agrees to indemnify you for, and hold you harmless from, all claims, damages,
losses, liabilities and expenses, including legal fees and expenses, resulting from or with respect
to this letter agreement and the administration and maintenance of the Lock-Box Account and the
services provided hereunder, including, without limitation: (a) any action taken, or not taken, by
you in regard thereto in accordance with the terms of this letter agreement, (b) the breach of any
representation or warranty made by Seller pursuant to this letter agreement, (c) any item,
including, without limitation, any automated clearinghouse transaction, which is returned for any
reason, and (d) any failure of Seller to pay any invoice or charge to you for services in respect
to this letter agreement and the Lock-Box Account or any amount owing to you from Seller with
respect thereto or to the service provided hereunder.



 


VI-3









 







10. THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
_____, WHICH STATE SHALL BE YOUR “LOCATION” FOR PURPOSES OF THE UNIFORM
COMMERCIAL CODE FROM AND AFTER JULY 1, 2002. This letter agreement may be executed in any number of
counterparts and all of such counterparts taken together will be deemed to constitute one and the
same instrument.



11. This letter agreement contains the entire agreement between the parties, and may not be
altered, modified, terminated or amended in any respect, nor may any right, power or privilege of
any party hereunder be waived or released or discharged, except upon execution by all parties
hereto of a written instrument so providing. In the event that any provision in this letter
agreement is in conflict with, or is inconsistent with, any provision of the Service Agreement,
this letter agreement will exclusively govern and control. Each party agrees to take all actions reasonably requested by any other party to
carry out the purposes of this letter agreement or to preserve and protect the rights of each party
hereunder.



 


VI-4









 







Please indicate your agreement to the terms of this letter agreement by signing in the space
provided below. This letter agreement will become effective immediately upon execution of a
counterpart of this letter agreement by all parties hereto.



	 	 	 	 	 
	 	Very truly yours,



[NAME OF CURRENT LOCK-BOX OWNER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AMERISOURCE RECEIVABLES FINANCIAL

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


VI-5









 







	 	 	 	 	 
	Acknowledged and agreed to as of the
date first above written:	 	 
	 
	 	 	 	 
	[COLLECTION BANK]

	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:

Title:
	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL 
ASSOCIATION,
as Administrator	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:

Title:
	 	 







 


VI-6









 







ANNEX A




FORM OF NOTICE




[On letterhead of the Administrator]




[Date]




[Collection Bank Name]

[Collection Bank Address]



Attn:
_____



Fax No. (_____) _____






Re: [Name of current Lock-Box owner]/Amerisource Receivables Financial Corporation



Ladies and Gentlemen:




We hereby notify you that we are exercising our rights pursuant to that certain letter
agreement dated
_____, 2003 (the “Letter Agreement”) among [Name of
current Lock-Box Owner], Amerisource Receivables Financial Corporation, you and us, to have the
name of, and to have exclusive ownership and control of, account no.
_____
identified in the Letter Agreement (the “Lock-Box Account”) maintained with you,
transferred to us. The Lock-Box Account will henceforth be a zero-balance account, and funds
deposited in the Lock-Box Account should be sent at the end of each day to the account specified in
Section 3(i) of the Letter Agreement, or as otherwise directed by the undersigned. You have further
agreed to perform all other services you are performing under the “Service Agreement” (as defined
in the Letter Agreement) on our behalf.



We appreciate your cooperation in this matter.



	 	 	 	 	 
	 	Very truly yours,



WACHOVIA BANK, NATIONAL

ASSOCIATION, as Administrator

 	 
	 	By:  	 	 
	 	 	Title: 	 






 


Annex A









 







SCHEDULE 1




Lock-Box Post Office Address







 


Sch. 1









 







EXHIBIT VII




CREDIT AND COLLECTION POLICY




See Exhibit V to Receivables Sale Agreement






 


VII-1









 





EXHIBIT VIII




FORM OF SETTLEMENT REPORT







 


VIII-1









 





Amerisource Receivables Financial Corporation

for the Month Ended:




(Page 1)

($)




I. Portfolio Information




	 	 	 	 	 	 	 	 	 
	1. Beginning of Month Balance: (Total A/R Outstanding
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2. Gross Sales (Domestic & Foreign):
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	3. Deduct
	 	 	 	 	 	 	 	 
	a. Total collections:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	b. Dilution
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	c. Net Write Offs
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	d. Misc. Non-Dilutive Adj.
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	4.
	 	 	 	 	 	 	 	 
	a.
Calculated Ending A/R Balance[(1) + (2) - (3 a,b,c)+3d)]:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	b. Reported Ending A/R Balance
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	c. Difference (if any)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	5. Deduct
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	a. Delinquent Receivables
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	b. Defaulted Receivables
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	c. Bankrupt Customers < 60 DPD
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	d. Intercompany/affiliate Receivables < 60 DPD
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	e. Foreign Receivables < 60 DPD
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	f. Total Government
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	g. Contra Relationships
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	h. Cross Age Test 50% > 60 DPD
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	i. Excess Receivables with terms 31-60 Days
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	j. Excess Receivables with terms 61-90 Days
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	k. Notes Receivables
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	l. Unapplied Cash (if not excluded from aging)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	m. Excess Futures (>3.5% of Total AR)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	n. Other Ineligibles
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	o. Total Ineligibles
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	6. Eligible Receivables [(4 b) - (5.o)]:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	7. Deduct Excess Concentration:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	8. Deduct Rebate Reserve
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	9. Net Pool Balance [(6) - (7)]:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Current	 	 	 	 	 	 	One Month	 	 	Two Months	 	 	Three Months	 
	10.	 	Aging Schedule:	 	 	Month	 	 	%	 	 	Prior	 	 	Prior	 	 	Prior	 
	a
	 	Futures	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	b
	 	Current	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	c
	 	1-30 Days Past Due	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	d
	 	31-60 Days Past Due	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	e
	 	Gross Balance 61-90 DPD	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	f
	 	Gross Balance 91-120 DPD	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	g
	 	Gross Balance 121-150 DPD	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	h
	 	Gross Balance 151 + DPD	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	i
	 	Bergen Credit Balances 61 + DPD	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Total	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


 









 





Amerisource Receivables Financial Corporation

For the Month Ended:




(Page 2)

($)




II. Calculations Reflecting Current Activity




	 	 	 	 	 	 	 	 	 
	11. CP Outstanding
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	12. Required Reserve %
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	13. Required Reserve [(8) x (11)]:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	14. Funding Available
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	15. Additional Availability or (Required Paydown)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	III. Compliance
	 	 	 	 	 	 	 	 
	 
	18. Asset Interest [(10) + (12)/(8)] < 100%:
	 	In Compliance	 	 	 	 
	 
	 	 	 	 	 	 	 
	17. 3M Avg. Delinquency Ratio
	 	In Compliance	 	 	 	 
	 
	 	 	 	 	 	 	 
	18. 3M Avg. Default Ratio
	 	In Compliance	 	 	 	 
	 
	 	 	 	 	 	 	 
	19. 3M Avg. Dilution Ratio
	 	In Compliance	 	 	 	 
	 
	 	 	 	 	 	 	 
	20. 1M DSO Ratio
	 	In Compliance	 	 	 	 
	 
	 	 	 	 	 	 	 
	21. Facility Limit [(12)<= $1,050,000,000
	 	In Compliance	 	 	 	 
	 
	 	 	 	 	 	 	 





 


 









 




Amerisource Receivables Financial Corporation

For the Month Ended:




(Page 3)

($)




IV. Excess Concentration: (Calculation)





Eligible Receivables



	 	 	 	 	 	 	 	 	 	 	 
	Allowable Percentage	 	 	Max. Allowable Balance	 	 	Credit Rating	 
	 	5.50	%	 	$	0	 	 	Advance PCS	 
	 	8.00	%	 	$	0	 	 	Long’s	 
	 	2.50	%	 	$	0	 	 	NR/NR	 
	 	3.00	%	 	$	0	 	 	A3/P3	 
	 	6.00	%	 	$	0	 	 	A2/P2	 
	 	11.00	%	 	$	0	 	 	A1/P1	 
	 	11.00	%	 	$	0	 	 	A1+/P1	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Largest	 	 	Short-Term	 	 	Allowable	 	 	Total	 	 	Allowable	 	 	Excess	 
	 	 	Obligors	 	 	Debt Rating	 	 	Percentage	 	 	Receivables	 	 	Receivables	 	 	Receivables	 
	1
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	7
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	8
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	9
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	10
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	11
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	12
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	13
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	14
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	15
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 
	 
	 	Total	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






The undersigned hereby represents and warrants that the foregoing is a true and
accurate accounting with respect to outstanding receivables as of                     
accordance with the Receivables Purchase Agreement dated                      and that all
representations and warranties related to such Agreement are restated and reaffirmed.




	 	 	 	 	 	 	 	 	 
	Signed: 
	 	 	Date:	 	 	 	 
	 	Title:

	 	 	 	 	 	 	 







 


 











 




EXHIBIT IX

FORM OF ASSUMPTION AGREEMENT




THIS ASSUMPTION AGREEMENT (this “Agreement”), dated as of [                    
 _____, 20___], is among
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION (the “Seller”), [                    ], as purchaser (the
“[                    ] Conduit Purchaser”), [                    ], as the related committed purchaser (the “[                    ]
Related Committed Purchaser” and together with the Conduit Purchaser, the “[                    ] Purchasers”),
and [                    ], as agent for the Purchasers (the “[                    ] Funding Agent” and together with the
Purchasers, the “[                    ] Purchaser Group”).



BACKGROUND




The Seller and various others are parties to a certain Receivables Purchase Agreement dated as
of July 10, 2003 (as amended, restated, supplemented or otherwise modified through the date hereof,
the “Receivables Purchase Agreement”). Capitalized terms used and not otherwise defined herein
have the respective meaning assigned to such terms in the Receivables Purchase Agreement.




NOW THEREFORE, the parties hereto hereby agree as follows:



SECTION 1. This letter constitutes an Assumption Agreement as defined in the Receivables
Purchase Agreement. The Seller desires [the [                    ] Purchasers] [the [                    ] Related Committed
Purchaser] to [become Purchasers under] [increase its existing Commitment under] the Receivables
Purchase Agreement and upon the terms and subject to the conditions set forth in the Receivables
Purchase Agreement, the [                    ] Purchasers agree to [become Purchasers thereunder] [increase its
Commitment in an amount equal to the amount set forth as the “Commitment” under the signature of
such [                    ] Related Committed Purchaser hereto].



Seller hereby represents and warrants to the [                    ] Purchasers as of the date hereof, as
follows:



(i) the representations and warranties of the Seller contained in Section 5.1 of the
Receivables Purchase Agreement are correct on and as of such dates as though made on and as of such
dates and shall be deemed to have been made on such dates;



(ii) no Amortization Event or Unmatured Amortization Event has occurred and is continuing, or
would result from such transfer; and



(iii) the Facility Termination Date shall not have occurred.


 


 









 





SECTION 2. Upon execution and delivery of this Agreement by the Seller and each member of the
[                    ] Purchaser Group, satisfaction of the other conditions to assignment specified in the
Receivables Purchase Agreement and receipt by the Administrator of counterparts of this Agreement
(whether by facsimile or otherwise) executed by each of the parties hereto, [the [                    ]
Purchasers shall become a party to, and have the rights and obligations of Purchasers under, the
Receivables Purchase Agreement] [the [                    ] Related Committed Purchaser shall increase its
Commitment in the amount set forth as the “Commitment” under the signature of the [                    ] Related
Committed Purchaser, hereto].



[Insert Alternate Base Rate, CP Costs, LIBO Rate and Schedule Facility Termination Date as
appropriate.]



SECTION 3. Each party hereto hereby covenants and agrees that it will not institute against,
or join any other Person in instituting against, any Conduit Purchaser, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and one day after the latest maturing
Commercial Paper notes issued by such Conduit Purchaser is paid in full. The covenant contained in
this paragraph shall survive any termination of the Receivables Purchase Agreement.



SECTION 4. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
This Agreement may not be amended, supplemented or waived except pursuant to a writing signed by
the party to be charged. This Agreement may be executed in counterparts, and by the different
parties on different counterparts, each of which shall constitute an original, but all together
shall constitute one and the same agreement.



(continued on following page)




 


 









 







IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
officers as of the date first above written.



	 	 	 	 	 
	 	[                    ], as a Conduit Purchaser

 	 
	 	By:  	 	 
	 	 	Name Printed: 	 	 
	 	 	Title:  	 	 
	 
	 	[Address]



[                    ], as a Related Committed Purchaser

 	 
	 	By:  	 	 
	 	 	Name Printed: 	 	 
	 	 	Title:  	 	 
	 
	 	[Address]

[Commitment]



[                    ], as Funding Agent for [                    ]

 	 
	 	By:  	 	 
	 	 	Name Printed: 	 	 
	 	 	Title:  	 	 
	 
	 	[Address]

 	 



 


 









 





	 	 	 	 	 
	AMERISOURCE RECEIVABLES

FINANCIAL CORPORATION, as Seller

 	 	
	By:  	 	 	
	 	Name Printed: 	 	 	
	 	Title:  	 	 	 



	 	 	 	 	 
	Consented and Agreed:




WACHOVIA BANK, NATIONAL ASSOCIATION,

as administrator

 	 	 
	By:  	 	 	 
	 	Name Printed: 	 	 	 
	 	Title:  	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name Printed: 	 	 	 
	 	Title:  	 	 	 
	 
	 
	Consented and Agreed:




[THE PURCHASERS]

 	 	 




 


 












 




Exhibit X




Form of Transfer Supplement

with respect to

Amerisource Receivables Financial Corporation

Receivables Purchase Agreement




Dated as of [________ __, 20____]




Section 1.



	 	 	 	 	 
	Commitment assigned:
	 	$	__________	 
	Assignor’s remaining Commitment:
	 	$	__________	 
	Invested Amount allocable
to Commitment assigned:
	 	$	__________	 
	Assignor’s remaining Invested Amount:
	 	$	__________	 
	Discount (if any) allocable to Invested Amount
Assigned:
	 	$	__________	 
	Discount (if any) allocable to Assignor’s
Remaining Invested Amount:
	 	$	__________	 






Section 2.



	 	 	 	 	 
	Effective Date of this Transfer Supplement:
	 	 	[________ __, 20, ____]	 






Upon execution and delivery of this Transfer Supplement by transferee and transferor and the
satisfaction of the other conditions to assignment specified in Section 12.1 of the Receivables
Purchase Agreement (as defined below), from and after the effective date specified above, the
transferee shall become a party to, and have the rights and obligations of a Related Committed
Purchaser under, the Receivables Purchase Agreement dated as of July [10], 2003 (as amended,
restated, supplemented or otherwise modified through the date hereof, the “Receivables Purchase
Agreement”), among Amerisource Receivables Financial Corporation, as Seller, AmerisourceBergen
Drug Corporation, as initial Servicer, Wachovia Bank, National Association, as Administrator, and
the various purchaser groups from time to time party thereto.



[Insert Alternate Base Rate, CP Costs, LIBO Rate and Scheduled Facility Termination Date as
appropriate.]


 


 









 





	 	 	 	 	 
	ASSIGNOR	 	[__________],
	 	 	as a Related Committed Purchaser
	 
	 	 	 	 
	 

	 	By: 	 	 
	 

	 	 	 
	 

	 	 	Name: 	 
	 

	 	 	 	 
	 

	 	 	Title: 	 
	 
	 	 	 	 
	ASSIGNEE:	 	[__________],
	 	 	as a Related Committed Purchaser
	 
	 	 	 	 
	 

	 	By: 	 	 
	 

	 	 	 
	 

	 	 	Name: 	 
	 

	 	 	 	 
	 

	 	 	Title: 	 
	 
	 	 	 	 
	 	 	[Address]






Accepted as of date first above

written:




[_____],

As Funding Agent for the

[_____] Purchaser Group




	 	 	 	 	 
	By: 
	 	 	 
	 	Name: 
	 	 	 
	 	Title:

	 

	 	 
	 

	 	 

	 	 







 


 











 







EXHIBIT XI




FORM OF CONTRACT(S)




[See Attached]







 


IX-1









 






[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.



PRIME VENDOR AGREEMENT




This Prime Vendor Agreement (“Agreement”) is made as of                      (“Effective Date”) by
AmerisourceBergen Drug Corporation, a Delaware corporation (“Distributor”), and
                                                            , a
                                         corporation (“Customer”).



A. Distributor is a national distributor of pharmaceutical and other products and services,
including prescription (Rx) and over-the-counter (OTC) pharmaceuticals, nutritional, health and
beauty care (HBC) and home health care (DME) products (collectively, “Products”);




B. Customer owns and operates one or more health system pharmacies (“Facilities”); and



C. The parties intend by this Agreement to set forth their obligations to each other for an
arrangement under which Distributor will provide Products and services to Customer (“Program”).




NOW THEREFORE, the parties agree as follows:



1. PRICING AND PAYMENT TERMS




Distributor will be the Primary Vendor of all requirements of Customer’s Facilities for
Products. Customer will pay, within terms, Product costs and Program fees pursuant to payment terms
in Exhibit “1” (“Pricing/Payment Terms”). “Primary Vendor” means Customer purchases from
Distributor no less than [*****] % of all prescription pharmaceutical Products it purchases, as
verified quarterly, and meets minimum periodic purchase levels in Paragraph 3(A) of the
Pricing/Payment Terms. Orders for Products will be electronically transmitted (other than Schedule
II controlled substances) and will describe Products that Distributor will provide to Customer, the
quantity and designated delivery location. All payment plans (except pre-pay) must be by electronic
funds transfer (EFT).



2. GENERICS PROGRAM PARTICIPATION




Customer may elect to participate in Distributor’s preferred generic formulary program,
“Preferred Rx Options (PRO Generics)”, pursuant to requirements as amended from time to time
by Distributor. If Customer elects to participate, Customer will order generic pharmaceutical
Products from Distributor. Customer authorizes Distributor as its sole agent to develop and
implement a generic pharmaceutical Product list for the Term. Customer will purchase from
Distributor each calendar quarter no less than the minimum Net Purchase volume of generic
pharmaceutical Products in Paragraph 3(A) of the Pricing/Payment Terms.



3. CUSTOMER LOCATIONS & DELIVERIES




Distributor will deliver Products to each Facility five days a week (Monday — Friday), once a
day except holidays. Additionally, Customer will be entitled to one emergency delivery per calendar
quarter at no additional charge. Customer may be charged for each additional emergency order.
Customer’s current Facilities are located:                                                             . Facility means each of
Customer’s health system pharmacies, together with any other facility Customer acquires, is
affiliated with or operates during the Term in the United States. Newly acquired facilities with
existing agreements with other distributors will become Facilities under this Agreement upon the
earlier of expiration of such existing agreement or the date Customer may terminate such agreement,
with or without cause, without breaching it or paying a material termination penalty; provided,
however, service to Facilities outside Distributor’s normal service area may be subject to a
delivery surcharge.


 


IX-2









 




4. RETURNED GOODS POLICY




Customer will only return goods to Distributor in accordance with Distributor’s standard
policy for returned goods (“Returned Goods Policy”), as amended from time to time by Distributor.



5. ADDITIONAL SERVICES & PROVISIONS.




Services are listed in Exhibit “2”. Terms, conditions and other provisions are set
forth in Exhibit “3” (“Provisions”). Distributor may, from time to time, develop policies
and procedures related to new or existing Services offered to customers, on an interim or as-needed
basis. If Distributor develops such policies or procedures or changes current ones, Distributor
will provide Customer with written notice at least thirty (30) days before such changes are
effective.



6. TERM OF AGREEMENT




Subject to Paragraph 5 of the Provisions, the Term will be from the Effective Date until                     .
The Term will, thereafter, be extended on a month-to-month basis until either party gives at least
ninety (90) days’ prior written notice to the other of its intention to not extend this Agreement.



7. NOTICES





Subject to Paragraph 9.3 of the Provisions, notices to Customer will be sent to:



	 	 	 	 	 
	 

	 	 

Attn: President
	 	 
	 

	 	Fax:	 	 






8. EXHIBITS




The following exhibits to this Agreement are incorporated by this reference.




	 	1	 	Pricing/Payment Terms

	 
	 	2	 	Value-Added Services

	 
	 	3	 	Provisions






IN WITNESS WHEREOF, the parties have had a duly authorized officer, partner or principal
execute this Prime Vendor Agreement as of its Effective Date.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CUSTOMER:	 	 	 	DISTRIBUTOR:	 	 
	 	 	 	 	 	 	 	 	AmerisourceBergen Drug Corporation	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 	 	 	 	 	 	 

	 	 






[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


 


IX-3









 





EXHIBIT 1 TO

PRIME VENDOR AGREEMENT

PRICING / PAYMENT TERMS




In addition to payment for Products, Customer will pay Distributor the following Program and other
fees for Distributor’s Product distribution and Services for Customer and its Facilities. Except
as otherwise provided, payments are due within ten (10) days from Distributor’s invoice date.
Pricing does not reflect any administrative or other fees to a group purchasing organization or
buying group (“GPO”). If Customer contracts with a GPO, Customer will pay any such fees to the
applicable GPO.



1. PROGRAM FEES




A. Distribution Fee (Price of Goods). Customer will pay the following Price of Goods
based, which includes Distributor’s fees for distributor, subject to the following adjustments for
Average Per-Facility Monthly Net Purchase volume and payment terms. For Products other than
SuperNet Products, Customer’s Price of Goods will be based upon Distributor’s “Cost” (as defined
below). Distributor will add to the billed amount any applicable sales, use, business and
occupation or similar tax. Price of Goods will begin at Tier No. 1 and may be adjusted quarterly
based upon Customer’s Average Per-Facility Monthly Net Purchase volume over the prior three (3)
months.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing Tiers	 	Price of Goods*
	Average Per-Facility Monthly Net Purchase Volume	 	 	 	 	 	Weekly
	No.	 	Branded Rx Pharmaceutical Products	 	Semi-Monthly	 	Weekly	 	Pre-Pay
	1

	 	 	 	 	 	to
	 	 	 	[*****]
	 	[*****]
	 	[*****]
	2

	 	$	0.01	 	 	to
	 	 	 	[*****]
	 	[*****]
	 	[*****]
	3

	 	$	0.01	 	 	to
	 	 	 	[*****]
	 	[*****]
	 	[*****]
	4

	 	$	0.01	 	 	to
	 	 	 	[*****]
	 	[*****]
	 	[*****]
	5

	 	$	0.01	 	 	to
	 	 	 	[*****]
	 	[*****]
	 	[*****]
	6

	 	$	0.01	 	 	&
	 	Above
	 	[*****]
	 	[*****]
	 	[*****]
	HBC/OTC Products

	 	 	 	 	 	 	 	 	 	[*****]
	 	[*****]
	 	[*****]
	PRO Generics, repackaged branded Rx, drop shipments, supplies
(bottles & vials), home healthcare (DME), private label, food,
nutritionals, gift items, school and office supplies, fragrance,
cosmetics, slow-moving items, bulk/case goods, etc.	 	SuperNet**








	 	 	 
	*	 	“Cost” means (i) the price on a manufacturer/supplier’s current price list on the date Product is
shipped to Customer, or (ii) any applicable Customer/GPO contract price authorized by a supplier
and maintained in a Distributor bid file. “Cost” is subject to Distributor’s receiving from all
suppliers (x) a two percent (2%) or greater cash discount and 30 days or better terms; and (y)
Product delivered to Distributor FOB its facilities; Cost will be adjusted accordingly if discounts
and terms are less favorable or Distributor pays transportation and related costs to receive
Products. No other adjustments to Cost are made for cash discounts or purchase or performance
rebates.

	 
	**	 	“SuperNet” applies to Products sold at a special net cost quoted to Customer by Distributor.
SuperNet Products are not subject to Cost-plus prices or to additional discounts. SuperNet
Products include products deemed operationally difficult to manage (e.g., bulky and high-cube
products). SuperNet purchases qualify towards total monthly purchase volume.





B. Additional Value-Added Services. The additional value-added services in Exhibit
“2” will be provided to Customer by Distributor for $[*****] per month per Facility for
Facilities that meet minimum Net Purchase levels.



[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


 


IX-4









 





C. Ordering Hardware/Software. In addition to the foregoing value-added Services fee,
Customer will pay the per-month fees in Exhibit “2” for ordering and reporting software and
hardware selected by Customer for each installation on system hardware at Customer’s Facilities and
other locations.



D. Set-Up Fee. A one-time set-up fee of will be paid to Distributor within five days
after execution of this Agreement.



E. Security Deposit. Within five days of execution, Customer will deposit with
Distributor the sum of $[*****] as a deposit for Customer’s performance of its obligations under
this Agreement. Upon request, Distributor will return such deposit within 30 days if Customer has
performed fully its obligations under this Agreement, including having no late payments, for a
period of 36 months prior to such request. Upon the expiration or termination of this Agreement,
Distributor may deduct from such deposit any unpaid amount, including payment for Products and
services. Distributor will return to Customer any balance remaining within 30 days of the
expiration or termination of this Agreement.



F. Contract Administration. In administering Customer’s GPO/supplier contracts,
Customer must (i) provide a copy of new contracts, (ii) comply with supplier’s terms, (iii) use all
products for its “own use” (as defined in judicial and legislative interpretations), (iv) notify
Distributor at least 45 days before it changes suppliers, and (v) upon changing suppliers, assist
Distributor in disposing of any excess inventory acquired for Customer. When invoiced, Customer
will promptly reimburse Distributor for any unpaid chargebacks that are (x) denied by a GPO or
manufacturer/supplier; or (y) not paid within 45 days and, in either case, Customer will look
solely to such GPO or manufacturer/supplier for redress.



2. PAYMENT TERMS




Customer agrees to the following payment terms for Product purchases. (Check only one box
below):



	 	 	 
	[*****]

	 	[*****]
	 
	 	 
	 

	 	[*****]






All payments must be received by EFT for deposit to Distributor’s account by the due date.
Distributor may change available payment plans from time to time. Payment term changes may affect
Price of Goods. If Customer does not select an option or the option selected is not available,
Distributor will bill Customer on Semi-Monthly terms until otherwise notified by Customer. Subject
to credit approval, Customer may change payment terms upon thirty (30) days’ written notice prior
to the beginning of a calendar month. Price of Goods adjustments for payment terms changes are
subject to changes from time to time by Distributor to reflect Distributor’s cost of money and any
resulting credit risk.



3. MINIMUM ORDER VOLUME




A. Annual Purchases. Customer’s minimum annual Net Purchase (total purchases less returns,
credits, rebates, late payment fees and similar items) volume during Year 1 is . Year 1 is from the
Effective Date to . Subsequent contract Years are the following 12-month periods. Customer’s Net
Purchases during subsequent years are projected to increase at a rate of [*****] % per Year during
each Year of the Term. Customer’s aggregate Net Purchases over the life of this Agreement will be
no less than . Additionally, total PRO Generics Net Purchases from all Facilities will be at least
[*****] % of total Rx purchases from all Facilities.



B. Small Order Charge. If Customer purchases less than $[*****] per month, a delivery charge
of $[*****] per delivery will be assessed for each order that is less than$ [*****] Distributor
may adjust the per-delivery charge from time to time to reflect Distributor’s shipping and handling
costs.



C. Price of Goods Adjustments. Customer acknowledges that Price of Goods and Program fees
available under this Agreement are based upon Customer’s meeting such minimum annual, aggregate and
PRO Generics Net Purchases and, if Customer fails to do so, in addition to any other remedies,
Distributor may reasonably adjust Price of Goods and Program fees on 10 days’ notice to reflect
lower than expected volume of purchases.



[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.




 


IX-5









 







EXHIBIT 2 TO

PRIME VENDOR AGREEMENT

ADDITIONAL VALUE-ADDED SERVICES




The following Services are offered to Customer by Distributor for monthly fees in Paragraph 1(B) of
Exhibit “1” (Pricing/Payment Terms).




	 	•	 	Bar-Coded Shelf Labels

	 
	 	•	 	DEA Scheduled Rx Products Purchased Report

	 
	 	•	 	Monthly Usage and 80/20 Report

	 
	 	•	 	Price stickers — Rx and OTC






Distributor reserves the right to discontinue any Services as it deems appropriate, in which case
Distributor will make a reasonable proportionate reduction in the monthly fee based upon the value
of the discontinued Services. In addition, from time to time Distributor may offer such new
Services, at such additional fees as it determines.



Ordering & Reporting Software and Hardware





	•	 	InterLinx reporting software for $[*****] per month per installation. (Note: InterLinx is
subject to a separate software license agreement).







	•	 	Internet ordering software (iBergen Catalog and Order Entry (COE), iECHO or similar
software, as appropriate) for $[*****] per month per installation.







	•	 	AccuSource for $[*****] per month per installation (plus $[*****] per month for monthly
CD-ROM updates).







	•	 	UltraPhase/Telxon handheld electronic order entry terminal (two per pharmacy) for no
additional charge per month per installation.







	•	 	No hardware will be included for Customer at a cost of $[*****] per month per installation.
Any such hardware may be used solely with Distributor’s ordering and reporting software.






Distributor retains title to all ordering and reporting hardware and software and, pursuant to
Provisions Paragraph 5.2, Customer must return them upon termination of this Agreement.



Computer consulting and related services will be offered at Distributor’s then-current standard
charges for such services.



Recalls




Distributor will notify Customer of all recalls as instructed in the supplier’s notification.



Drop Ship Service




Distributor provides drop ship service when Customer’s needs dictate this approach and the supplier
meets Distributor’s liability insurance and other requirements. Drop shipments may be subject to an
additional charge.



[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


 


IX-6









 





EXHIBIT 3 TO

PRIME VENDOR AGREEMENT

PROVISIONS




1. DUTIES OF ABDC



1.1 Orders. Orders may be subject to minimum order size requirements. Other than
back-ordered Products, Distributor will make reasonable efforts to (i) deliver orders placed by
Distributor’s normal order cut-off time by the next delivery day; and (ii) ship out-of-stock
Products promptly after their receipt from the supplier.



1.2 Emergency Orders. Distributor will use commercially reasonable efforts to meet a
requested delivery time for emergency orders, which may be subject to an additional charge. If
Distributor cannot do so, Customer may fill emergency orders outside the Program on such occasions
using another provider notwithstanding minimum purchase commitments in this Agreement.





1.3 Records, Audits. Distributor will maintain records of transactions for one year during
the Term or after. Customer’s employees may audit such records only pursuant to Distributor’s
audit policies, as modified from time to time. Such audits may be conducted no more than once in
any 12-month period, only during reasonable business hours and upon reasonable notice and may only
cover 12 months prior to the request. All costs will be borne by Customer, including costs to
produce records. If an audit shows net overcharges or undercharges and Distributor agrees with
such findings, Distributor will credit or charge Customer within 30 days of receipt of written
notice of the net overcharge (or, if later, within 30 days of receiving an applicable supplier’s
credit) or undercharge.



2. DUTIES OF CUSTOMER



2.1 Primary Vendor Orders. For Products required by Facilities, Customer will submit an
electronic order for all required Products for Facilities. If allowed, non-electronic orders may by
subject to additional charges.



2.2 Disclosure. Customer will comply with all laws, including reporting or reflecting
discounts, rebates and other price reductions pursuant to 42 U.S.C. §1320a-7b(b)(3)(A) on cost
reports or claims submitted to federal or state healthcare programs, retaining invoices and related
pricing documentation and making them available on request to healthcare program representatives.



2.3 Notice of Changes. Customer will promptly notify Distributor of changes in ownership,
name, business form (e.g., sole proprietorship, partnership or corporation) or any intent to sell,
close, move or modify its operations.



2.4 No Set-Off. Customer’s obligation to pay for Products will be absolute, unconditional
and not subject to reduction, set-off, counterclaim or delay.



2.5 Billing Statements. Billing disputes must be brought promptly to attention of
Distributor’s accounts receivable department within 12 months after receipt of the first statement
containing the amount in dispute or, otherwise, Customer will be deemed to accept the accuracy of
such statements and to waive its right to dispute the amount.



2.6 Late Payment. All payments must be received in Distributor’s account during normal
business hours on the date due. Drivers and other Distributor employees cannot accept cash. Price
of Goods reflects a prompt payment discount. If payment is not received by the due date,
Distributor will invoice Customer such unearned discount at [*****] effective as of the due date.
Thereafter, if payment is delinquent, Distributor may withhold any payments to Customer and will
assess a per-day late payment fee of the lower of [*****]% ([*****]) or the maximum rate permitted
by law on the outstanding balance until paid, beginning on the first (1st) business day
after such due date. Additionally, Distributor may adjust future Price of Goods to reflect
Customer’s payment history. Such rights are in addition to Distributor’s other remedies and will
not relieve Customer of its obligation to make prompt payment in accordance with this Agreement.



2.7 Title And Risk Of Loss. All goods are F.O.B. Customer’s location, with freight prepaid.
Title and risk of loss passes upon delivery to Customer.



2.8 Extension Of Credit. Payment terms are an extension of credit based upon an evaluation
of Customer’s financial condition upon commencement of this Agreement as reflected in written
information from Customer. Customer will abide by Distributor’s standard credit terms as amended
from time to time by Distributor. Customer will promptly notify Distributor in writing of any Claim
that, with an unfavorable result, would have a material adverse effect on Customer’s financial
condition or operation. Upon request, Customer will furnish Distributor complete annual and
quarterly financial statements and other evidence of its financial condition necessary to
establish, in Distributor’s opinion, Customer’s ability to perform its obligations. If Distributor
reasonably believes Customer’s ability to make payments is impaired or its financial condition has
materially deteriorated, Distributor may from time to time amend Customer’s payment terms and
require posting of adequate security or such other documents as Distributor may require. Pending
their receipt, Distributor may withhold delivery of goods and providing Services; place Customer on
a C.O.D. basis if Distributor has not received payment when due after giving notice by 10:00 a.m.
and giving Customer until 2:00 p.m. the same day for Distributor to receive payment; and/or require
Customer to pay part or all of any past due amount as a condition to continued service.



3. NO WARRANTIES



Customer acknowledges that Distributor is not the manufacturer of any Products and DISTRIBUTOR
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, NON-INFRINGEMENT
AND FITNESS FOR A PARTICULAR PURPOSE, FOR PRODUCTS AND SERVICES. No oral or written information
provided by Distributor, its employees or other representatives will create any such warranty. In
no event will Distributor be liable for any special, incidental or consequential damages in
connection with Products, hardware, Software, including ordering software, or Services.



4. CONFIDENTIALITY



Each party and its employees or representatives (“Receiving Party”) will protect all proprietary
and confidential information (“Confidential Information”) disclosed by the other (“Disclosing
Party”) and not use or disclose it except in connection with the Program or as otherwise agreed.
Confidential Information does not include information (i) available on a non-confidential basis,
(ii) known or able to be formulated by Receiving Party, or (iii) required to be disclosed by law.
Pricing and payment terms are confidential. Customer will remove Exhibit “1” (or request
confidential treatment) if it discloses this Agreement for any reason, including in a Securities
and Exchange Commission filing.



5. TERMINATION OF AGREEMENT



5.1 Default. In addition to other available remedies, either party may immediately
terminate this Agreement for cause upon written notice to the other party upon the other party’s:



(a) (i) filing an application for or consenting to appointment of a trustee, receiver or custodian
of its assets; (ii) having an order for relief entered in Bankruptcy Code proceedings; (iii)
making a general assignment for the benefit of creditors; (iv) having a trustee, receiver or
custodian of its assets appointed unless proceedings and the person appointed are dismissed within
30 days; (v) insolvency within the meaning of Uniform Commercial Code Section 1-201 or failing
generally to pay its debts as they become due within the meaning of Bankruptcy Section 303(h)(1),
as amended; or (vi) certification in writing of its inability to pay its debts as they become due
(and either party may periodically require the other to certify its ability to pay its debts as
they become due) (collectively, “Bankruptcy”);



(b) Failure to pay any amount due and such failure continues five days after written notice; or



[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


 


IX-7









 





(c) Failure to perform any other material obligation and such failure continues for 30 days after
it receives notice of such breach from the non-breaching party; provided, however, if the other
party has commenced to cure such breach within such 30 days, but such cure is not completed within
such 30 days, it will have a reasonable time to complete its cure if it diligently pursues the
cure until completion; and further provided that if such breach occurs more than three times
during any 12-month period, the non-breaching party may terminate this Agreement upon 30 days’
written notice. “For cause” does not include Customer’s receiving a more favorable offer from a
competitor.



5.2 Survival Upon Termination. Within five days of expiration or earlier termination of
this Agreement for any reason, Customer will (i) pay Distributor any amount owed and (ii) return
to Distributor all hardware, Software and other equipment, including ordering devices and totes,
or pay to Distributor the replacement cost of such items that are not returned. Obligations in
Provisions Paragraphs 4, 5.2, 6 and 9 and any provision the context of which shows the parties
intended it to survive will remain in effect after the Term.



6. INDEMNIFICATION



Each party (“Indemnifying Party”) will indemnify and defend the other, its employees and
representatives (“Indemnified Party”) against all claims and damages (including expenses and
attorneys’ fees) (“Claim”) to the extent arising out of performance of Indemnifying Party’s
obligations under this Agreement. Failure to give prompt written notice of a Claim will not
relieve Indemnifying Party of liability except to the extent caused by such failure. Indemnifying
Party will defend a Claim with counsel reasonably satisfactory to Indemnified Party and
Indemnified Party will cooperate fully in such defense.



7. CUSTOMER’S INSURANCE



Customer will maintain sufficient insurance to cover all unpaid inventory in its possession.
Customer will maintain professional liability insurance with limits of no less than $2,000,000 per
incident and $10,000,000 aggregate. Distributor will be named on such policies as an additional
insured. Distributor may reasonably increase such required limits from time to time.



8. SOFTWARE LICENSE



8.1 License. Distributor grants Customer a non-exclusive, nontransferable and revocable
license to use software and related documentation Distributor provides for use in the Program
(“Software”). Customer may not make, or allow others to make, copies except one backup copy.
Customer must include all proprietary notices in permitted copies. Customer may not modify
Software or
create derivative works and may not translate, reverse engineer, disassemble or decompile
Software.



8.2 Limited Warranty. Distributor warrants that, for 90 days from the Effective Date, (i)
Software will perform substantially in accordance with its documentation if operated as directed
and (ii) hardware provided by Distributor and diskettes, CD-ROMs or other media on which Software
is provided will be free from defects under normal use. DISTRIBUTOR DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE, FOR HARDWARE AND SOFTWARE. No oral or written information provided by
Distributor, its employees or other representatives will create any warranty.



8.3 Remedy. Distributor’s liability and Customer’s exclusive remedy for breach of
warranties in Paragraph 8.2 will be, at Distributor’s option, to (i) repair or replace Software or
hardware so it performs substantially in accordance with its documentation; (ii) advise Customer
how to achieve substantially the same functionality using different procedures, or (iii) replace
defective media returned within 90 days of the Effective Date. Such replacement will not extend
such 90-day period.



9. MISCELLANEOUS



9.1 Force Majeure. If Distributor’s performance is prevented or delayed by labor disputes,
fire, terrorism, acts of God, or any other cause beyond its control, including unavailability of
Products, transportation, materials or fuel, delays by suppliers, loss of facilities, voluntary
foregoing a right in order to comply with or accommodate government orders or requests, compliance
with any law, or any other cause beyond its control (“Force Majeure”), Distributor may reduce or
eliminate Products without liability or obligation during the Force Majeure period. In addition,
if Force Majeure affects Distributor’s cost of operations, Distributor may, at its discretion, add
to the cost of Products its increased fuel costs, including taxes, and other costs associated with
Product transportation so long as Force Majeure affects its costs.



9.2 Security Interest. Customer hereby grants to Distributor a security interest which may
be a purchase money security interest in Products that Customer has not paid for and in Customer’s
or any third party’s proceeds from Products until all amounts are paid. Distributor may do such
things as are necessary to achieve the purposes of this Paragraph.



9.3 Notices. Notices must be in writing and sent certified mail, prepaid, return receipt
requested, or sent by facsimile as follows. Parties may change this information by written
notice.




Customer:




To the address in Agreement Section 7.




Distributor:




AmerisourceBergen Drug Corporation

1300 Morris Drive, Suite 100

Chesterbrook, Pennsylvania 19087-5594

Attn: Vice President, Health Systems

Fax: (610) 727-3601




With a copy to:




AmerisourceBergen Drug Corporation

1300 Morris Drive, Suite 100

Chesterbrook, Pennsylvania 19087-5594

Attn: General Counsel

Fax: (610) 727-3612



9.4 Assignment. Customer may only assign its rights or delegate its duties under this
Agreement upon written consent of Distributor. Customer hereby consents to Distributor’s
assigning part or all of its obligations to any affiliate and to assigning or granting a security
interest in this Agreement in connection with any financing or securitization by Distributor or
any affiliate.



9.5 Miscellaneous. The successful party in any legal action, including in a Bankruptcy
proceeding, may recover all costs, including reasonable attorneys’ fees. Internal Pennsylvania law
will govern this Agreement. Any waiver or delay in enforcing this Agreement will not deprive a
party of the right to act at another time or due to another breach. All provisions are severable.
This Agreement supersedes prior oral or written representations by the parties that relate to its
subject matter. Captions are intended for convenience of reference only. The parties may not
modify this Agreement other than by a subsequent writing signed by each party. This Agreement will
be interpreted as if written jointly by the parties. The parties are independent contractors. Time
is of the essence in the performance of all obligations.



[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.




 


IX-8











 







EXHIBIT XII




FORM OF PERFORMANCE UNDERTAKING




THIS PERFORMANCE UNDERTAKING (this “Undertaking”), dated as of July 10, 2003, is executed by
AmerisourceBergen Corporation, a Delaware corporation (the “Performance Guarantor”), in favor of
Amerisource Receivables Financial Corporation, a Delaware corporation (together with its successors
and assigns, “Recipient”).



RECITALS




1. AmerisourceBergen Drug Corporation (the “Originator”) and Recipient have entered into a
Receivables Sale Agreement, dated as of July 10, 2003 (as amended, restated or otherwise modified
from time to time, the “Sale Agreement”), pursuant to which Originator, subject to the terms and
conditions contained therein, is selling and/or contributing its right, title and interest in its
accounts receivable to Recipient.



2. Performance Guarantor owns one hundred percent (100%) of the capital stock of the
Originator and Recipient, and Originator, and accordingly, Performance Guarantor, is expected to
receive substantial direct and indirect benefits from its sale or contribution of receivables to
Recipient pursuant to the Sale Agreement (which benefits are hereby acknowledged).



3. As an inducement for Recipient to acquire Originator’s accounts receivable pursuant to the
Sale Agreement, Performance Guarantor has agreed to guaranty the due and punctual performance by
Originator of its obligations under the Sale Agreement, as well as the Servicing Related
Obligations (as hereinafter defined).



4. Performance Guarantor wishes to guaranty the due and punctual performance by Originator of
its obligations to Recipient under or in respect of the Sale Agreement and the Servicing Related
Obligations (as hereinafter defined), as provided herein.



AGREEMENT




NOW, THEREFORE, Performance Guarantor hereby agrees as follows:



Section 1. Definitions. Capitalized terms used herein and not defined herein shall
have the respective meanings assigned thereto in the Sale Agreement or the Receivables Purchase
Agreement (as hereinafter defined). In addition:



“Guaranteed Obligations” means, collectively: (a) all covenants, agreements, terms, conditions
and indemnities to be performed and observed by Originator under and pursuant to the Sale Agreement
and each other document executed and delivered by Originator pursuant to the Sale Agreement,
including, without limitation, the due and punctual payment of all sums which are or may become due
and owing by Originator under the Sale Agreement, whether for fees, expenses (including counsel
fees), indemnified amounts or otherwise, whether upon any termination or for any other reason and
(b) all obligations of Originator (i) as Servicer under the Receivables Purchase Agreement, dated
as of July 10, 2003 by and among Recipient, as Seller, AmerisourceBergen Drug Corporation, as
Servicer, the various Purchaser Groups from time to time party thereto, and Wachovia Bank, National
Association, as Administrator (as amended, restated or otherwise modified, the “Receivables
Purchase Agreement” and, together



 


XII-1









 







with the Sale Agreement, the “Agreements”) or (ii) which arise pursuant to Sections 8.2, 8.3 or
13.3(a) of the Receivables Purchase Agreement as a result of its termination as Servicer (all such
obligations under this clause (b), collectively, the “Servicing Related Obligations”).



Section 2. Guaranty of Performance of Guaranteed Obligations. Performance Guarantor
hereby guarantees to Recipient, the full and punctual payment and performance by Originator of its
Guaranteed Obligations. This Undertaking is an absolute, unconditional and continuing guaranty of
the full and punctual performance of all Guaranteed Obligations of Originator under the Agreements
and each other document executed and delivered by Originator pursuant to the Agreements and is in
no way conditioned upon any requirement that Recipient first attempt to collect any amounts owing
by Originator to Recipient, the Administrator, any Purchaser Agent or any Purchaser from any other
Person or resort to any collateral security, any balance of any deposit account or credit on the
books of Recipient, the Administrator, any Purchaser Agent or any Purchaser in favor of Originator
or any other Person or other means of obtaining payment. Should Originator default in the payment
or performance of any of its Guaranteed Obligations, Recipient (or its assigns) may cause the
immediate performance by Performance Guarantor of the Guaranteed Obligations and cause any payment
Guaranteed Obligations to become forthwith due and payable to Recipient (or its assigns), without
demand or notice of any nature (other than as expressly provided herein), all of which are hereby
expressly waived by Performance Guarantor. Notwithstanding the foregoing, this Undertaking is not a
guarantee of the collection of any of the Receivables and Performance Guarantor shall not be
responsible for any Guaranteed Obligations to the extent the failure to perform such Guaranteed
Obligations by Originator results from Receivables being uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness of the related Obligor; provided that nothing
herein shall relieve Originator from performing in full its Guaranteed Obligations under the
Agreements or Performance Guarantor of its undertaking hereunder with respect to the full
performance of such duties.



Section 3. Performance Guarantor’s Further Agreements to Pay. Performance Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to Recipient (and its
assigns), forthwith upon demand in funds immediately available to Recipient, all reasonable costs
and expenses (including court costs and reasonable legal expenses) incurred or expended by
Recipient in connection with the Guaranteed Obligations, this Undertaking and the enforcement
thereof, together with interest on amounts recoverable under this Undertaking from the time when
such amounts become due until payment, at a rate of interest (computed for the actual number of
days elapsed based on a 360 day year) equal to the Prime Rate of Wachovia plus 2% per annum, such
rate of interest changing when and as such Prime Rate changes.



Section 4. Waivers by Performance Guarantor. Performance Guarantor waives notice of
acceptance of this Undertaking, notice of any action taken or omitted by Recipient (or its assigns)
in reliance on this Undertaking, and any requirement that Recipient (or its assigns) be diligent
or prompt in making demands under this Undertaking, giving notice of any Amortization Event, other
default or omission by Originator or asserting any other rights of Recipient under this
Undertaking. Performance Guarantor warrants that it has adequate means to obtain from Originator,
on a continuing basis, information concerning the financial condition of Originator, and that it is
not relying on Recipient to provide such information, now or in the future. Performance Guarantor
also irrevocably waives all defenses (i) that at any time may be available in respect of the
Guaranteed Obligations by virtue of any statute of limitations, valuation, stay,



 


XII-2









 







moratorium law or other similar law now or hereafter in effect or (ii) that arise under the law of
suretyship, including impairment of collateral. Recipient (and its assigns) shall be at liberty,
without giving notice to or obtaining the assent of Performance Guarantor and without relieving
Performance Guarantor of any liability under this Undertaking, to deal with Originator and with
each other party who now is or after the date hereof becomes liable in any manner for any of the
Guaranteed Obligations, in such manner as Recipient in its sole discretion deems fit, and to this
end Performance Guarantor agrees that the validity and enforceability of this Undertaking,
including without limitation, the provisions of Section 7 hereof, shall not be impaired or affected
by any of the following: (a) any extension, modification or renewal of, or indulgence with respect
to, or substitutions for, the Guaranteed Obligations or any part thereof or any agreement relating
thereto at any time; (b) any failure or omission to enforce any right, power or remedy with respect
to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or any
collateral securing the Guaranteed Obligations or any part thereof; (c) any waiver of any right,
power or remedy or of any Termination Event (as defined in the Receivables Sale Agreement),
Amortization Event, or default with respect to the Guaranteed Obligations or any part thereof or
any agreement relating thereto; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any other obligation of any person
or entity with respect to the Guaranteed Obligations or any part thereof; (e) the enforceability or
validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to the Guaranteed Obligations or any
part thereof; (f) the application of payments received from any source to the payment of any
payment obligations of Originator or any part thereof or amounts which are not covered by this
Undertaking even though Recipient (or its assigns) might lawfully have elected to apply such
payments to any part or all of the payment obligations of Originator or to amounts which are not
covered by this Undertaking; (g) the existence of any claim, setoff or other rights which
Performance Guarantor may have at any time against Originator in connection herewith or any
unrelated transaction; (h) any assignment or transfer of the Guaranteed Obligations or any part
thereof; or (i) any failure on the part of Originator to perform or comply with any term of the
Agreements or any other document executed in connection therewith or delivered thereunder, all
whether or not Performance Guarantor shall have had notice or knowledge of any act or omission
referred to in the foregoing clauses (a) through (i) of this Section 4.




Section 5. Unenforceability of Guaranteed Obligations Against Originator.
Notwithstanding (a) any change of ownership of Originator or the insolvency, bankruptcy or any
other change in the legal status of Originator; (b) the change in or the imposition of any law,
decree, regulation or other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Guaranteed Obligations; (c) the failure
of Originator or Performance Guarantor to maintain in full force, validity or effect or to obtain
or renew when required all governmental and other approvals, licenses or consents required in
connection with the Guaranteed Obligations or this Undertaking, or to take any other action
required in connection with the performance of all obligations pursuant to the Guaranteed
Obligations or this Undertaking; or (d) if any of the moneys included in the Guaranteed Obligations
have become irrecoverable from Originator for any other reason other than final payment in full of
the payment obligations in accordance with their terms, this Undertaking shall nevertheless be
binding on Performance Guarantor. This Undertaking shall be in addition to any other guaranty or
other security for the Guaranteed Obligations, and it shall not be rendered unenforceable by the
invalidity of any such other guaranty or security. In the event that



 


XII-3









 







acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of Originator or for any other reason with respect to
Originator, all such amounts then due and owing with respect to the Guaranteed Obligations under
the terms of the Agreements, or any other agreement evidencing, securing or otherwise executed in
connection with the Guaranteed Obligations, shall be immediately due and payable by Performance
Guarantor.




Section 6. Representations, Warranties and Covenants. Performance Guarantor hereby
represents and warrants to, and covenants with, Recipient that:



(a) Existence and Standing. Performance Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its state of incorporation. Performance
Guarantor is duly qualified to do business and is in good standing as a foreign corporation, and
has and holds all corporate power and all governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which its business is conducted
except where the failure to so qualify or so hold could not reasonably be expected to have a
material adverse effect on its financial conditions or results of operations.



(b) Authorization, Execution and Delivery; Binding Effect. The execution and delivery
by Performance Guarantor of this Undertaking, and the performance of its obligations hereunder, are
within its corporate powers and authority and have been duly authorized by all necessary corporate
action on its part. This Undertaking has been duly executed and delivered by Performance Guarantor.
This Undertaking constitutes the legal, valid and binding obligation of Performance Guarantor
enforceable against Performance Guarantor in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors’ rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).



(c) No Conflict; Government Consent. The execution and delivery by Performance
Guarantor of this Undertaking, and the performance of its obligations hereunder, do not contravene
or violate (i) its certificate or articles of incorporation or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to
which it is a party or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its property, and do not result
in the creation or imposition of any Lien on assets of Performance Guarantor or its Subsidiaries
(except as created hereunder) except, in any case, where such contravention or violation could not
reasonably be expected to have a material adverse effect on its financial conditions or results of
operations or result in rendering any indebtedness evidenced thereby due and payable prior to its
maturity or result in the creation or imposition of any Lien pursuant to the terms of any such
instrument or agreement upon any property (now owned or hereafter acquired).



(d) Financial Statements. The consolidated financial statements of Performance
Guarantor and its consolidated Subsidiaries dated as of December 31, 2002 and March 31, 2003
heretofore delivered to Recipient have been prepared in accordance with generally accepted
accounting principles consistently applied and fairly present in all material respects the
consolidated financial condition and results of operations of Performance Guarantor



 


XII-4









 







and its consolidated Subsidiaries as of such dates and for the periods ended on such dates. Since
the later of (i) March 31, 2003 and (ii) the last time this representation was made or deemed made,
no event has occurred which would or could reasonably be expected to have a material adverse effect
on its financial conditions or results of operations.



(e) Taxes. Performance Guarantor has filed all United States federal tax returns and
all other tax returns which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by Performance Guarantor or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been provided. The United States income tax returns of Performance Guarantor have been audited
by the Internal Revenue Service through the fiscal year ended December 31, 2002. No federal or
state tax liens have been filed and no claims are being asserted with respect to any such taxes.
The charges, accruals and reserves on the books of Performance Guarantor in respect of any taxes or
other governmental charges are adequate.



(f) Litigation and Contingent Obligations. Except as disclosed in the filings made by
Performance Guarantor with the Securities and Exchange Commission, there are no actions, suits or
proceedings pending or, to the best of Performance Guarantor’s knowledge threatened against or
affecting Performance Guarantor or any of its properties, in or before any court, arbitrator or
other body, that could reasonably be expected to have a material adverse effect on (i) the
business, properties, condition (financial or otherwise) or results of operations of Performance
Guarantor and its Subsidiaries taken as a whole, (ii) the ability of Performance Guarantor to
perform its obligations under this Undertaking, or (iii) the validity or enforceability of any of
this Undertaking or the rights or remedies of Recipient hereunder. Performance Guarantor does not
have any material Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 6(d).



(g) Financial Covenants. Performance Guarantor shall comply at all time with the
covenants set forth in Sections 6.12, 6.13. 6.14 and 6.15 of the Credit Agreement as in effect on
the date hereof (without giving effect to any amendment, waiver, termination, supplement or other
modification thereof unless consented to by the Administrator and the Required Purchaser Agents).



Section 7. Subrogation; Subordination. Notwithstanding anything to the contrary
contained herein, until the Guaranteed Obligations are paid in full Performance Guarantor: (a) will
not enforce or otherwise exercise any right of subrogation to any of the rights of Recipient, the
Administrator, any Purchaser Agent or any Purchaser against Originator, (b) hereby waives all
rights of subrogation (whether contractual, under Section 509 of the United States Bankruptcy Code,
at law or in equity or otherwise) to the claims of Recipient, the Administrator, each Purchaser
Agent and each Purchaser against Originator and all contractual, statutory or legal or equitable
rights of contribution, reimbursement, indemnification and similar rights and “claims” (as that
term is defined in the Federal Bankruptcy Code) which Performance Guarantor might now have or
hereafter acquire against Originator that arise from the existence or performance of Performance
Guarantor’s obligations hereunder, (c) will not claim any setoff, recoupment or counterclaim
against Originator in respect of any liability of Performance Guarantor to Originator and (d)
waives any benefit of and any right to participate in any collateral security which may be held by
Recipient, the Administrator, any Purchaser Agent or any Purchaser. The payment of any amounts due
with respect to any indebtedness of Originator now or hereafter



 


XII-5









 







owed to Performance Guarantor is hereby subordinated to the prior payment in full of all of the
Guaranteed Obligations. Performance Guarantor agrees that, after the occurrence of any default in
the payment or performance of any of the Guaranteed Obligations, Performance Guarantor will not
demand, sue for or otherwise attempt to collect any such indebtedness of Originator to Performance
Guarantor until all of the Guaranteed Obligations shall have been paid and performed in full. If,
notwithstanding the foregoing sentence, Performance Guarantor shall collect, enforce or receive any
amounts in respect of such indebtedness while any obligations are still unperformed or outstanding,
such amounts shall be collected, enforced and received by Performance Guarantor as trustee for
Recipient (and its assigns) and be paid over to Recipient (or its assigns) on account of the
Guaranteed Obligations without affecting in any manner the liability of Performance Guarantor under
the other provisions of this Undertaking. The provisions of this Section 7 shall be supplemental to
and not in derogation of any rights and remedies of Recipient under any separate subordination
agreement which Recipient may at any time and from time to time enter into with Performance
Guarantor.




Section 8. Termination of Performance Undertaking. Performance Guarantor’s obligations
hereunder shall continue in full force and effect until all Aggregate Unpaids are finally paid and
satisfied in full and the Receivables Purchase Agreement is terminated; provided that this
Undertaking shall continue to be effective or shall be reinstated, as the case may be, if at any
time payment or other satisfaction of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of Originator
or otherwise, as though such payment had not been made or other satisfaction occurred, whether or
not Recipient (or its assigns) is in possession of this Undertaking. No invalidity, irregularity or
unenforceability by reason of the federal bankruptcy code or any insolvency or other similar law,
or any law or order of any government or agency thereof purporting to reduce, amend or otherwise
affect the Guaranteed Obligations shall impair, affect, be a defense to or claim against the
obligations of Performance Guarantor under this Undertaking.



Section 9. Effect of Bankruptcy. This Performance Undertaking shall survive the
insolvency of Originator and the commencement of any case or proceeding by or against Originator
under the Federal Bankruptcy Code or other federal, state or other applicable bankruptcy,
insolvency or reorganization statutes. No automatic stay under the Federal Bankruptcy Code with
respect to Originator or other federal, state or other applicable bankruptcy, insolvency or
reorganization statutes to which Originator is subject shall postpone the obligations of
Performance Guarantor under this Undertaking.



Section 10. Setoff. Regardless of the other means of obtaining payment of any of the
Guaranteed Obligations, Recipient (and its assigns) is hereby authorized at any time and from time
to time, without notice to Performance Guarantor (any such notice being expressly waived by
Performance Guarantor) and to the fullest extent permitted by law, to set off and apply any
deposits and other sums against the obligations of Performance Guarantor under this Undertaking,
whether or not Recipient (or any such assign) shall have made any demand under this Undertaking and
although such obligations may be contingent or unmatured.



Section 11. Taxes. All payments to be made by Performance Guarantor hereunder shall be
made free and clear of any deduction or withholding. If Performance Guarantor is required by law to
make any deduction or withholding on account of tax or




 


XII-6









 







otherwise from any such payment, the sum due from it in respect of such payment shall be increased
to the extent necessary to ensure that, after the making of such deduction or withholding,
Recipient receive a net sum equal to the sum which it would have received had no deduction or
withholding been made.




Section 12. Further Assurances. Performance Guarantor agrees that it will from time to
time, at the request of Recipient (or its assigns), provide information relating to the business
and affairs of Performance Guarantor as Recipient may reasonably request. Performance Guarantor
also agrees to do all such things and execute all such documents as Recipient (or its assigns) may
reasonably consider necessary or desirable to give full effect to this Undertaking and to perfect
and preserve the rights and powers of Recipient hereunder.



Section 13. Successors and Assigns. This Performance Undertaking shall be binding upon
Performance Guarantor, its successors and permitted assigns, and shall inure to the benefit of and
be enforceable by Recipient and its successors and assigns. Performance Guarantor may not assign or
transfer any of its obligations hereunder without the prior written consent of each of Recipient,
the Administrator and each Purchaser Agent. Without limiting the generality of the foregoing
sentence, Recipient may assign or otherwise transfer the Agreements, any other documents executed
in connection therewith or delivered thereunder or any other agreement or note held by them
evidencing, securing or otherwise executed in connection with the Guaranteed Obligations, or sell
participations in any interest therein, to any other entity or other Person, and such other entity
or other Person shall thereupon become vested, to the extent set forth in the agreement evidencing such assignment, transfer or participation, with all the rights in
respect thereof granted to the beneficiaries herein.




Section 14. Amendments and Waivers. No amendment or waiver of any provision of this
Undertaking nor consent to any departure by Performance Guarantor therefrom shall be effective
unless the same shall be in writing and signed by Recipient, the Administrator, each Purchaser
Agent and Performance Guarantor. No failure on the part of Recipient 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 preclude any other or further exercise thereof or the exercise of
any other right.



Section 15. Notices. All notices and other communications provided for hereunder shall
be made in writing and shall be addressed as follows: if to Performance Guarantor, at the address
set forth beneath its signature hereto, and if to Recipient, at the addresses set forth beneath its
signature hereto, or at such other addresses as each of Performance Guarantor or any Recipient may
designate in writing to the other. Each such notice or other communication shall be effective (1)
if given by telecopy, upon the receipt thereof, (2) if given by mail, three (3) Business Days after
the time such communication is deposited in the mail with first class postage prepaid or (3) if
given by any other means, when received at the address specified in this Section 15.



Section 16. GOVERNING LAW. THIS UNDERTAKING SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.



 


XII-7









 







Section 17. CONSENT TO JURISDICTION. EACH OF PERFORMANCE GUARANTOR AND RECIPIENT
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS UNDERTAKING, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH
OR DELIVERED THEREUNDER AND EACH OF PERFORMANCE GUARANTOR AND RECIPIENT HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.



Section 18. Bankruptcy Petition. Performance Guarantor hereby covenants and agrees
that, prior to the date that is one year and one day after the payment in full of all outstanding
senior Indebtedness of Conduit Purchaser, it will not institute against, or join any other Person
in instituting against, Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States.



Section 19. Miscellaneous. This Undertaking constitutes the entire agreement of
Performance Guarantor with respect to the matters set forth herein. The rights and remedies herein
provided are cumulative and not exclusive of any remedies provided by law or any other agreement,
and this Undertaking shall be in addition to any other guaranty of or collateral security for any
of the Guaranteed Obligations. The provisions of this Undertaking are severable, and in any action
or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the obligations of
Performance Guarantor hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of Performance Guarantor’s liability under this Undertaking,
then, notwithstanding any other provision of this Undertaking to the contrary, the amount of such
liability shall, without any further action by Performance Guarantor or Recipient, be automatically limited and reduced to the highest amount that is
valid and enforceable as determined in such action or proceeding. Any provisions of this
Undertaking which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Unless otherwise specified, references herein to “Section” shall mean a reference to sections of
this Undertaking.



IN WITNESS WHEREOF, Performance Guarantor has caused this Undertaking to be executed and
delivered as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	AMERISOURCEBERGEN CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	 	 	 	 	 	 	 





 


XII-8









 




Exhibit XIII

Responsible Officers




	 	 	 
	AmerisourceBergen
Drug Corporation

	 	R. David Yost, Chief Executive Officer 

Kurt J. Hilzinger, President & Chief Operating Officer 

Michael D. DiCandilo, Senior Vice President & Chief Financial Officer 

Terrance P. Haas, Senior Vice President, Operations 

William D. Sprague, Senior Vice President, General Counsel & Secretary 

Tim G. Guttman, Vice President & Corporate Controller 

J.F. Quinn, Vice President & Corporate Treasurer 

Vicki L. Bausinger, Assistant Secretary 

Daniel T. Hirst, Assistant Secretary
	 
	 	 
	AmeriSource
Receivables
Financial
Corporation

	 	R. David Yost, President 

Michael D. DiCandilo, Senior Vice President & Chief Financial Officer 

William D. Sprague, Senior Vice President, General Counsel & Secretary 

Tim G. Guttman, Vice President & Corporate Controller 

J.F. Quinn, Vice President & Corporate Treasurer 

Julie Frantz, Assistant Treasurer 

James T. Rizol, Assistant Treasurer 

Vicki L. Bausinger, Assistant Secretary 

Daniel T. Hirst, Assistant Secretary







 















 




Exhibit XIV




Form of Interim Settlement Report




 


 









 





Amerisource Receivables Financial Corporation

For the Period Ended:

1/00/00




I. Portfolio Information




	 	 	 	 	 	 	 	 	 
	1. Reported Ending Weekly A/R Balance
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	2. Deduct: Ineligibles Receivables
	 	From most recent monthly report	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	3. Eligible Receivables [(1 - 2)]:
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	4. Deduct: Excess Concentrations
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	5. Net Pool Balance [(3) - (4)]:
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	6. Required Reserve %
	 	From most recent monthly report	 	 	 	0.0	%
	 
	 	 	 	 	 	 	 	 
	7. Required Reserve $ [(5) x (6)]:
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	8. Borrowing Availability [(5) - (7)]
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	9. CP Outstanding:
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	10. Asset Interest [(9 + 7) / (5)] < 100%:
	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 
	11. Additional Availability or (Required Paydown)
	 	 	 	 	 	$	0	 






The undersigned hereby represents and warrants that the foregoing is a true and
accurate accounting with respect to outstanding receivables as of                      accordance with the Receivables Purchase Agreement dated                      and that all
representations and warranties related to such Agreement are restated and reaffirmed.





	 	 	 	 	 	 	 	 	 
	Signed: 
	 	 	Date:	 	 	 	 
	 	Title:

	 	 	 	 	 	 	 






 


 











 





EXHIBIT XV




FORM OF REDUCTION NOTICE




___________, _____




Wachovia Bank, National Association, as Administrator

191 Peachtree Street, N.E., GA-8047

Atlanta, Georgia 30303



Attention: Cecil Noble, Fax No. (404) 332-5152



[Address to each Purchaser Agent]



Ladies and Gentlemen:




Reference is hereby made to the Receivables Purchase Agreement, dated as of July 10, 2003 (as
amended, supplemented or otherwise modified, the “Receivables Purchase Agreement”), among
Amerisource Receivables Financial Corporation, as Seller, AmerisourceBergen Drug Corporation, as
Servicer, the various purchaser groups from time to time party thereto, and Wachovia Bank, National
Association, as Administrator. Capitalized terms used in this Reduction Notice and not otherwise
defined herein shall have the meanings assigned thereto in the Receivables Purchase Agreement.



This letter constitutes a Reduction Notice pursuant to Section 1.3 of the Receivables
Purchase Agreement. The Seller desires to reduce the Aggregate Invested Amount on

_____,
_____1 by the application of cash to pay Aggregate
Invested Amount and Yield to accrue (until such cash can be used to pay commercial paper notes) with respect to such Aggregate Invested Amount, together with all
costs related to such reduction of Aggregate Invested Amount, as follows:



(a) Reduction Amount:
$_____





(b) Ratable Share:



	 	 	 	 	 
	(i) Blue Ridge Asset Funding Corporation’s Purchaser Group:
	 	$	                    	 





 





	 	 	 
	1	 	Notice must be given at least two Business Days prior to the
requested reduction date (or three Business Days if the
reduction to be made to Purchasers in the Market Street
Funding Corporation Purchaser Group is $50,000,000 or more).



 


XV-1









 





	 	 	 	 	 
	(ii) EagleFunding Capital Corporation’s
Purchaser Group:
	 	$	                    	 
	 
	 	 	 	 
	(iii) Liberty Street Funding Corp.’s
Purchaser Group:
	 	$	                    	 
	 
	 	 	 	 
	(iv) Atlantic Asset Securitization Corp.’s
Purchaser Group:
	 	$	                    	 
	 
	 	 	 	 
	(v) Market Street Funding Corporation’s
Purchaser Group:
	 	$	                    	 






 


XV-2









 







IN WITNESS WHEREOF, the undersigned has caused this Reduction Notice to be executed by its
duly authorized officer as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	AMERISOURCE RECEIVABLES FINANCIAL CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


XV-3









 




EXHIBIT XVI




Form of Legend




“THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD PURSUANT TO A RECEIVABLES SALE AGREEMENT,
DATED AS OF JULY 10, 2003, AS THE SAME MAY FROM TIME TO TIME BE AMENDED, RESTATED, SUPPLEMENTED OR
OTHERWISE MODIFIED, BETWEEN AMERISOURCEBERGEN DRUG CORPORATION, AS ORIGINATOR, AND AMERISOURCE
RECEIVABLES FINANCIAL CORPORATION, AS BUYER; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE
RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO VARIOUS PURCHASERS PURSUANT TO A RECEIVABLES
PURCHASE AGREEMENT, DATED AS OF JULY 10, 2003, AS THE SAME MAY FROM TIME TO TIME BE AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED, AMONG AMERISOURCE RECEIVABLES FINANCIAL CORPORATION,
AS SELLER, AMERISOURCEBERGEN DRUG CORPORATION, AS INITIAL SERVICER, THE VARIOUS PURCHASER GROUPS
FROM TIME TO TIME PARTY THERETO, AND WACHOVIA BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR.”




 















 




EXHIBIT XVII




Form of Collection Account Amendment and Assignment




July 10, 2003




[Name of Lockbox Bank]

[Address]




Attention:




Re: Amendment and Assignment of Lockbox Letter Agreements



Ladies and Gentlemen:



Reference is hereby made to those certain Lockbox Letter Agreements dated [_____] (the
“Agreements”) for lockbox numbers [_____] (the “Lockboxes”) and the
corresponding demand deposit account numbers [_____] (the “Lockbox Accounts”), among
[_____], as Lockbox bank (“[Name of Lockbox Bank]”), AmeriSource Receivables Financial
Corporation (“ARFC”) and Morgan Guaranty Trust Company of New York (now known as JPMorgan
Chase Bank) (“Morgan”) under the Receivables Purchase Agreement, dated as of May 14, 1999,
among ARFC, as seller, AmerisourceBergen Drug Corporation (f/k/a AmeriSource Corporation)
(“ABDC”), as servicer, AmeriSource Health Corporation (now known as AmerisourceBergen
Services Corporation), as guarantor, Delaware Funding Corporation, as buyer, and Morgan, as
administrative agent (the “Morgan Transaction”). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Agreements.



1. Assignment of Agreement.




In connection with the transactions contemplated by the Receivables Sale Agreement, dated as
of July 10, 2003, between AmerisourceBergen Drug Corporation, as originator (in such capacity, the
“Originator”), and ARFC (the “Receivables Sale Agreement”), and the Receivables
Purchase Agreement, dated as of July 10, 2003, among ABDC, as servicer (in such capacity, the
“Servicer”), the various purchaser groups from time to time party thereto and Wachovia
Bank, National Association, as administrator (the “Administrator”) (the “Receivables
Purchase Agreement” and together with the Receivables Sale Agreement, the “Wachovia
Transaction”), Morgan hereby transfers and assigns to the Administrator all of its right, title
and interest in, to and under the Agreements, the Lockboxes and the Lockbox Accounts.



From and after the date hereof, (i) the Administrator shall have all the rights, and be
subject to all of the obligations of Morgan with respect to the Agreements, the Lockboxes and the
Lockbox Accounts, and (ii) all references in the Agreements to the “Administrative Agent”,
“AmeriSource Corporation”, the
“Servicer” and the “Receivables Purchase Agreement” shall refer to the Administrator, ABDC, the
Servicer and the Receivables Purchase Agreement (each as defined herein), respectively.


 


 









 





2. Amendments to Agreement.



(a) Each of the Agreements is hereby amended and restated by adding the following language
after the fourth paragraph thereto:




In addition, as collateral security for ARFC’s obligations to the Administrator and
certain other persons in connection with the Receivables Purchase Agreement, ARFC hereby
grants to the Administrator a present and continuing security interest in (a) the Lockboxes
and the Lockbox Accounts, (b) all general intangibles and privileges in respect of the
Lockboxes or the Lockbox Accounts, and (c) all cash, checks, money orders and other items of
value of ARFC now or hereafter paid, deposited, credited, held (whether for collection,
provisionally or otherwise) or otherwise, in the possession or under the control of, or in
transit to [Name of Lockbox Bank] or any agent, bailee or custodian thereof in respect of
the Lockboxes or the Lockbox Accounts, and all proceeds of the foregoing (collectively,
“Receipts”). [Name of Lockbox Bank] acknowledges and agrees that (i) the Administrator has
“Control” (as contemplated in §9-104 of the applicable UCC) of the Lockbox Accounts and
[Name of Lockbox Bank] is required to comply with the instructions of the Administrator
directing disposition of the funds in the Lockbox Accounts without further consent by
AmeriSource Corporation, the Servicer, ARFC or any affiliate thereof and (ii) [Name of
Lockbox Bank] shall at all times maintain the Lockbox Accounts as “Deposit Accounts” (as
defined in §9-102 of the applicable UCC). The Administrator hereby appoints [Name of
Lockbox Bank] as the Administrator’s bailee for the Lockboxes, Lockbox Accounts and all
Receipts for the purpose of perfecting the Administrator’s security interest in such
collateral, and [Name of Lockbox Bank] hereby accepts such appointment and agrees to be
bound by the terms of this letter agreement. ARFC hereby agrees to such appointment and
further agrees that [Name of Lockbox Bank], on behalf of the Administrator, shall be
entitled to exercise, as directed in accordance with the terms of this letter agreement, any
and all rights which the Administrator may have in connection with the transactions
referenced in the first paragraph of this letter agreement or under applicable law with
respect to the Lockboxes, Lockbox Accounts, all Receipts and all other collateral described
in this paragraph.




[Name of Lockbox Bank] hereby agrees not to institute or join any other person or
entity in instituting, any suit pursuant to Title 11, United States Code, or any similar
suit or proceeding under then applicable state or federal law providing for the relief of
debtors or the protection of creditors, against ARFC prior to the date which is one year and
one day after payment of all obligations of ARFC to the Administrator (and the parties for
which it is acting as agent) are paid in full. This section shall survive any termination
of this letter agreement.


 


2









 





(b) The eleventh paragraph each of the Agreement is hereby amended and restated by deleting
such paragraph and replacing it with the following:




[Name of Lockbox Bank] may terminate this letter agreement upon 60 days’ prior written
notice to ARFC, the Servicer and the Administrator. Neither ARFC nor the Servicer may
terminate this letter agreement, except with the written consent of the Administrator and
upon 10 days’ prior written notice to [Name of Lockbox Bank] and the Administrator.
AmeriSource Corporation may not terminate this letter agreement. Incoming mail addressed to
the Lockboxes or Lockbox Accounts (including, without limitation, any direct funds transfer
to the Lockbox Accounts) received after any such termination shall be forwarded in
accordance with the Administrator’s instructions (or if the Administrator has not delivered
the Administrator’s Notice, the Servicer’s instructions).




[Name of Lockbox Bank] shall not assign or transfer its rights or obligations hereunder
(other than to the Administrator) without the prior written consent (which consent shall not
be unreasonably withheld) of the Administrator and ARFC. AmeriSource Corporation (except to
the extent of its limited capacity as Servicer) shall not assign or transfer its rights and
obligations hereunder without the consent of [Name of Lockbox Bank] and the consent of the
Administrator. Neither ARFC nor the Servicer shall assign or transfer its rights or
obligations hereunder without the consent of the Administrator. The Administrator may at
any time assign its rights and obligations hereunder upon notice to the other parties
hereto. Subject to the preceding sentences, this Agreement shall be binding upon each of
the parties hereto and their respective successors and assigns, and shall inure to the
benefit of, and be enforceable by, the Administrator, each of the parties hereto and their
respective successors and assigns.



(c) The sentence comprising the fifteenth paragraph of each of the Agreements (before taking
into account this Amendment and Assignment) is hereby replaced with the following language:




This letter agreement and the rights and obligations of the parties hereunder will be
governed by and construed and interpreted in accordance with the internal laws of the State
of Virginia. ARFC, the Administrator and [Name of Lockbox Bank] agree that [_____] is
[Name of Lockbox Bank]’s “jurisdiction” for purposes of §9-304 of the applicable UCC.



[Signatures begin on the following page]



 


3









 





This Amendment and Assignment and the rights and obligations of the parties hereunder will be
governed by and construed and interpreted in accordance with the laws of the State of New York.
This Assignment may be executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and the same
agreement. Delivery of an executed counterpart of the signature pages of this Assignment by
telecopier shall be equally effective as delivery of a manually executed counterpart.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	JP MORGAN CHASE BANK (F/K/A MORGAN

GUARANTY TRUST COMPANY OF NEW YORK)	 	 
	 
	 	 	 	 	 	 
	 

	 	BY: 	 	 	 
	 

	 	 	NAME: 	 	 	 
	 

	 	 	TITLE: 	 	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL

ASSOCIATION, AS ADMINISTRATOR	 	 
	 
	 	 	 	 	 	 
	 

	 	BY: 	 	 	 
	 

	 	 	NAME:	 	 	 
	 

	 	 	TITLE: 	 	 	 





 


S-1









 





	 	 	 	 	 
	ACKNOWLEDGED AND AGREED:	 	 
	 
	 	 	 	 
	AMERISOURCEBERGEN DRUG 

CORPORATION (F/K/A AMERISOURCE CORPORATION)	 	 
	 
	 	 	 	 
	BY: 
	 

	 
	NAME: 	 


	
	TITLE:	 


	 
	 	 	 	 
	AMERISOURCE RECEIVABLES 

FINANCIAL CORPORATION	 	 
	 
	 	 	 	 
	BY: 
	 

	 
	NAME:	 


	
	TITLE:	 


	 
	 	 	 	 
	[NAME OF LOCKBOX BANK]	 	 
	 
	 	 	 	 
	BY: 
	 

	 
	NAME:	 


	
	TITLE:	 









 


S-2











 







SCHEDULE A




DOCUMENTS TO BE DELIVERED




ON OR PRIOR TO THE INITIAL PURCHASE




1. Executed copies of the Receivables Purchase Agreement, duly executed by the parties
thereto.



2. Copy of the Resolutions of the Board of Directors of each Seller Party and Performance
Guarantor certified by its Secretary authorizing such Person’s execution, delivery and performance
of this Agreement and the other documents to be delivered by it hereunder.



3. Articles or Certificate of Incorporation of each Seller Party and Performance Guarantor
certified by the Secretary of State of its jurisdiction of incorporation on or within thirty (30)
days prior to the initial Purchase.



4. Good Standing Certificate for each Seller Party and Performance Guarantor issued by the
Secretaries of State of its state of incorporation and each jurisdiction where it has material
operations, each of which is listed below:



a. Seller: Delaware




b. Servicer: Delaware




c. Performance Guarantor: Delaware




5. A certificate of the Secretary of each Seller Party and Performance Guarantor certifying
(i) the names and signatures of the officers authorized on its behalf to execute this Agreement and
any other documents to be delivered by it hereunder and (ii) a copy of such Person’s By-Laws.



6. Pre-filing state and federal tax lien, judgment lien and UCC lien searches against each
Seller Party from the following jurisdictions:



a. Seller: Pennsylvania, Delaware



b. Servicer: Pennsylvania, Delaware, California, Missouri, Tennessee, Massachusetts, Nevada




7. Time stamped receipt copies of proper financing statements, duly filed under the UCC on or
before the date of the initial Purchase in all jurisdictions as may be necessary or, in the opinion
of the Administrator or any Purchaser Agent, desirable, under the UCC of all appropriate
jurisdictions or any comparable law in order to perfect the ownership interests contemplated by
this Agreement.



8. Time stamped receipt copies of proper UCC termination statements, if any, necessary to
release all security interests and other rights of any Person in the Receivables, Contracts or
Related Security previously granted by Seller.



 


Sch. A-1









 







9. Executed copies of Collection Account Agreements for each Lock-Box and Collection Account.



10. A favorable opinion of legal counsel for the Seller Parties and Performance Guarantor
reasonably acceptable to the Administrator and each Purchaser Agent which addresses the following
matters and such other matters as the Administrator and each Purchaser Agent may reasonably
request:



(a) Each of the Seller Parties and Performance Guarantor is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Delaware.



(b) Each of the Seller Parties and Performance Guarantor has all requisite authority to
conduct its business in each jurisdiction where failure to be so qualified would have a Material
Adverse Effect on such entity’s business.



(c) The execution and delivery by each of the Seller Parties and Performance Guarantor of the
Transaction Document to which it is a party and its performance of its obligations thereunder have
been duly authorized by all necessary organizational action and proceedings on the part of such
entity and will not:




(i) require any action by or in respect of, or filing with, any governmental body, agency
or official (other than the filing of UCC financing statements);




(ii) contravene, or constitute a default under, any provision of applicable law or
regulation or of its articles or certificate of incorporation or bylaws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such entity; or




(iii) result in the creation or imposition of any Lien on assets of such entity or any of
its Subsidiaries (except as contemplated by the Transaction Documents).



(d) Each of the Transaction Documents to which each of the Seller Parties and Performance
Guarantor is a party has been duly executed and delivered by such entity and constitutes the
legally valid, and binding obligation of such entity enforceable in accordance with its terms,
except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally and subject also to the availability
of equitable remedies if equitable remedies are sought.



(e) The provisions of the Receivables Purchase Agreement are effective to create valid
security interests in favor of the Administrator, for the benefit of the Secured Parties, in all of
Seller’s right, title and interest in and to the Receivables and Related Security described therein
which constitute “accounts,” “chattel paper” or “general intangibles” (each as defined in the UCC)
(collectively, the “Opinion Collateral”), as security for the payment of the Aggregate Unpaids.



(f) Each of the UCC-1 Financing Statements naming Seller as debtor, and Administrator, as
secured party, to be filed with the Secretary of State of Delaware, is in appropriate form for
filing therein. Upon filing of such UCC-1 Financing Statements in such filing offices and payment
of the required filing fees, the security interest in favor of the Administrator, for the benefit
of the Secured Parties, in the Opinion Collateral will be perfected.



 


Sch. A-2









 







(g) Based solely on our review of the UCC Search Reports described in Paragraph 4 to this
Schedule A, and assuming (i) the filing of the Financing Statements and payment of the required
filing fees in accordance with paragraph (f) and (ii) the absence of any intervening filings
between the date and time of the Search Reports and the date and time of the filing of the
Financing Statements, the security interest of the Administrator in the Opinion Collateral is prior
to any security interest granted in the Opinion Collateral by Seller, the priority of which is
determined solely by the filing of a financing statement in the applicable filing office.



(h) Neither of the Seller Parties is a “holding company” or a “subsidiary holding company” of
a “holding company” within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or an “investment company” within the meaning of the Investment Company Act of 1940, as
amended.



11. A Compliance Certificate.



12. The Fee Letter.



13. A Settlement Report as of
_____, 2003.




14. Executed copies of (i) all consents from and authorizations by any Persons and (ii) all
waivers and amendments to existing credit facilities, that are necessary in connection with this
Agreement.



15. If applicable, a direction letter executed by each of the Seller Parties authorizing the
Administrator and each Purchaser Agent, and directing warehousemen to allow the Administrator and
each Purchaser Agent to inspect and make copies from such Seller Party’s books and records
maintained at off-site data processing or storage facilities.



16. The Liquidity Agreement, duly executed by each of the parties thereto.



17. If applicable, for each Purchaser that is not incorporated under the laws of the United
States of America, or a state thereof, two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI, as applicable, certifying in either case that such Purchaser is
entitled to receive payments under the Agreement without deduction or withholding of any United
States federal income taxes.




 


Sch. A-3