EXHIBIT 10.35
OMNIBUS AMENDMENT No. 1
TO
RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT,
RECEIVABLES SALE AND CONTRIBUTION AGREEMENT, AND
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
THIS OMNIBUS AMENDMENT No. 1 TO RECEIVABLES PURCHASE AND
CONTRIBUTION AGREEMENT,RECEIVABLES SALE AND CONTRIBUTION AGREEMENT, AND
RECEIVABLES PURCHASE AND SERVICING AGREEMENT is entered into as of May 31, 2002,
by and among ADVANCEPCS (the "Parent"), ADVANCEPCS HEALTH L.P. (the
"Originator"), AFC RECEIVABLES HOLDING CORPORATION (the "Buyer"), ADVANCE
FUNDING CORPORATION, a Delaware corporation (the "Seller"), ADVP MANAGEMENT
L.P., a Delaware limited partnership, in its capacity as servicer hereunder (in
such capacity, the "Servicer"), REDWOOD RECEIVABLES CORPORATION, a Delaware
corporation (the "Conduit Purchaser"), and GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation, as a Committed Purchaser (the "Committed Purchaser") and
as administrative agent for the Conduit Purchaser and the Committed Purchaser
hereunder (in such capacity, the "Administrative Agent").
WHEREAS, the Originator, the Buyer, the Servicer and the
Parent entered into that certain Receivables Purchase and Contribution
Agreement, dated as of December 10, 2001 (as amended to the date hereof, the
"Original Contribution Agreement" and as amended hereby, the "Contribution
Agreement");
WHEREAS, the Parent, the Buyer (as seller thereunder), the
Seller (as purchaser thereunder) and the Servicer entered into that certain
Receivables Sale and Contribution Agreement, dated as of December 10, 2001 (as
amended to the date hereof, the "Original Sale Agreement" and as amended hereby,
the "Sale Agreement");
WHEREAS, the Seller, the Conduit Purchaser, the Committed
Purchaser and the Administrative Agent, entered into that certain Receivables
Purchase and Servicing Agreement, dated as of December 10, 2001 (as amended to
the date hereof, the "Original Purchase Agreement", as amended hereby, the
"Purchase Agreement", the Original Purchase Agreement, together with the
Contribution Agreement and the Sale Agreement are referred to herein as the
"Original Agreements" and the Purchase Agreement, the Contribution Agreement and
the Sale Agreement are referred to herein as the "Agreements");
WHEREAS, capitalized terms used in the Original Agreements are
defined in "Annex X to Receivables Purchase and Contribution Agreement,
Receivables Sale and Contribution Agreement and Receivables Purchase Agreement"
(the "Original Annex X" and as amended and restated hereby, "Annex X").
Capitalized terms used, but not otherwise defined herein shall have the meanings
given to such terms in Annex X; and
WHEREAS, the parties hereto desire to amend each of the
Original Agreements and to amend and restate, in its entirety, the Original
Annex X;
NOW THEREFORE, in consideration of the premises and the other
mutual covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments.
(a) Each of the Original Agreements is hereby amended by
deleting in full the Original Annex X attached thereto and by adding to each
such Agreement the amended and restated Annex X attached hereto as Attachment A.
(b) The Original Annex X is hereby amended and restated in its
entirety with the amended and restated Annex X attached hereto as Attachment A.
(c) The second sentence of Section 2.3(b) of the Original
Purchase Agreement is amended by deleting such sentence in its entirety and
replacing it with the following:
"Any such notice must be given in writing so that it is
received no later than 12:00 noon (New York time) on the
Business Day immediately preceding the proposed Purchase Date
set forth therein."
(d) Section 2.7(c) of the Original Purchase Agreement is
amended by deleting such section in its entirety and replacing it with the
following:
"The Seller agrees to pay to the Administrative Agent, for the
account of the Applicable Purchaser, an unused facility fee
(the "Unused Facility Fee") in an amount equal to (i) for each
day from the Amendment Effective Date until the earlier of (x)
the Termination Date and (y) the day on which the Capital
Investment is less than or equal to $50 million, 0.375% per
annum on the amount by which the Maximum Purchase Limit as in
effect on such date exceeds the Capital Investment on such
date and (ii) for each day from first day on which the Capital
Investment is less than or equal to $50 million until the
Termination Date, 0.425% per annum on the amount by which the
Maximum Purchase Limit as in effect on such date exceeds the
Capital Investment on such date. The Unused Facility Fee shall
be (A) payable monthly in arrears on the fifth (5th ) Business
Day of each month, commencing in the first month following the
month in which the Amendment Effective Date occurs and (B)
fully earned when payable and non-refundable."
(e) Clause (A) of Section 6.1(a)(ii) of the Original Purchase
Agreement is amended by adding the words "within the United States" following
the words "one or more lockboxes or post office boxes" therein.
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(f) Exhibit 2.3(a) of the Original Purchase Agreement is
hereby deleted and c hereto is hereby substituted in place thereof.
(g) Exhibit 3.1(a)(iv) of the Original Purchase Agreement is
hereby deleted and Exhibit 3.1(a)(iv) hereto is hereby substituted in place
thereof.
(h) Clause (a) to Annex 5.2(a) of the Original Purchase
Agreement is hereby amended by replacing the words "the fifteenth day" with "the
twentieth day."
(i) The following clause (k) is hereby added to Annex 5.2(a)
of the Original Purchase Agreement:
"(k) Reconciliation Reports. Immediately after the end of each
billing cycle under the ReCAP System and the RxClaim System, a
reconciliation report to verify that only ReCAP System and
RxClaim System ▇▇▇▇▇▇▇▇ are tracked on the Monthly Report, the
Investment Base Certificates and any other report submitted by
the Seller under the Agreement."
(j) The following clause (i) is hereby added to Annex 7.9 of
the Original Purchase Agreement:
"(k) Reconciliation Reports. Immediately after the end of each
billing cycle under the ReCAP System and the RxClaim System, a
reconciliation report to verify that only ReCAP System and RxClaim
System ▇▇▇▇▇▇▇▇ are tracked on the Monthly Report, the Investment Base
Certificates and any other report submitted by the Seller under the
Agreement."
(k) Exhibit 6A.2(a) of the Original Sale Agreement is hereby
deleted and Annex 6A.2(a) hereto is hereby substituted in place thereof.
(l) The second sentence of Section 4.3(b) of the Original Sale
Agreement is amended by replacing the reference therein to "Section 4.2(o)" with
a reference to "Section 4.2(l)."
(m) Paragraph numbered 2 in Exhibit 2.1(a) to the Original
Sale Agreement is amended by replacing the reference therein to "Section 4.2(o)"
with a reference to "Section 4.2(l)."
SECTION 2. Agreements in Full Force and Effect as Amended.
Except as specifically amended hereby, each of the Original Agreements shall
remain in full force and effect. All references in each Original Agreement to
the "Agreement" therein shall be deemed to mean such Original Agreement as
amended and modified hereby. This Amendment shall not constitute a novation of
any or all of the Original Agreements, but shall constitute an amendment of each
such Original Agreement only. The parties hereto agree to be bound by the terms
and conditions of each Original Agreement, as amended by this Amendment, as
though such terms and conditions were set forth herein.
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SECTION 3. Conditions to Effectiveness of this Amendment. The
amendments set forth herein shall not be effective until the date on which each
of the conditions set forth in Attachment B has, in the opinion of the
Administrative Agent, been satisfied in full (such date being the "Amendment
Effective Date").
SECTION 3. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but all
of which together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by facsimile shall be
as effective as delivery of a manually executed counterpart of a signature page
to this Amendment.
(b) The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified
except as provided in the Agreement.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
[Remainder of Page Intentionally Left Bank]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ADVANCEPCS
By
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Name
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Title
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Address:
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▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President, Corporate Affairs
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
ADVANCEPCS HEALTH L.P., as the Originator
By
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Name
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Title
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Address:
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▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President, Corporate Affairs
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
AFC RECEIVABLES HOLDING CORPORATION, as the Buyer
By
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Name
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Title
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Address:
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c/o Entity Services
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
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Telephone:
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Facsimile:
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ADVANCE FUNDING CORPORATION, as the Seller
By
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Name
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Title
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Address:
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c/o Entity Services
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
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Telephone:
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Facsimile:
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ADVP MANAGEMENT L.P., as the Servicer
By
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Name
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Title
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Address:
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▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President, Corporate Affairs
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
REDWOOD RECEIVABLES CORPORATION, as the
Conduit Purchaser
By
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Name
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[Assistant Secretary]:
Address:
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c/o General Electric Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION,
as Committed Purchaser
By
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Name
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Duly Authorized Signatory:
Address:
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Portfolio/Advance Funding
Corporation
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By
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Name
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Duly Authorized Signatory
Address:
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Portfolio/Advance Funding
Corporation
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGED AND AGREED:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Collateral Agent
By
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Name
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Duly Authorized Signatory
Address:
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ATTACHMENT A
AMENDED AND RESTATED ANNEX X
(see attached)
ATTACHMENT B
CONDITIONS TO EFFECTIVENESS OF OMNIBUS AMENDMENT
(a) Representations. Each of the Parent, the Originator, the Buyer, the
Seller and the Servicer shall represent and warrant to the Conduit Purchaser,
the Committed Purchaser and the Administrative Agent that (i) no Termination
Event or Incipient Termination Event exists and (ii) the execution and delivery
by such Person of this Amendment shall not cause any such Person to be in
default of any provision of any of the Transaction Documents;
(b) Amendment; Other Related Documents. The Amendment shall have been
duly executed by, and delivered to, the parties thereto and the Purchasers and
the Administrative Agent shall have received such other documents, instruments,
agreements and legal opinions as each Purchaser and the Administrative Agent
shall request in connection with the transactions contemplated by this
Agreement, including all those listed in Exhibit A, each in form and substance
satisfactory to each Purchaser and the Administrative Agent.
(c) Governmental Approvals. The Purchasers and the Administrative Agent
shall have received (i) satisfactory evidence that the Originator, the Buyer,
the Seller and the Servicer have obtained all required consents and approvals of
all Persons, including all requisite Governmental Authorities, to the execution,
delivery and performance of this Amendment and the other Related Documents
executed and/or delivered in connection therewith and the consummation of the
transactions contemplated thereby or (ii) an Officer's Certificate from each of
the Originator, the Buyer, the Seller and the Servicer in form and substance
satisfactory to the Purchasers and the Administrative Agent affirming that no
such consents or approvals are required.
(d) Compliance with Laws. The Originator, the Buyer, the Parent, the
Seller and the Servicer shall be in compliance in all material respects with all
applicable foreign, federal, state and local laws and regulations, including
those specifically referenced in Section 5.1(a) of the Purchase Agreement.
(e) Payment of Fees. The Seller shall have paid all fees required to be
paid by it on the Amendment Effective Date, including all fees required
hereunder and under the Fee Letter, and shall have reimbursed each Purchaser for
all fees, costs and expenses of closing the transactions contemplated under the
Amendment and under the other Related Documents executed in connection
therewith, including each Purchaser's legal, rating agency and audit expenses,
and other document preparation costs.
(f) Representations and Warranties. Each representation and warranty by
each of the Originator, the Parent, the Buyer, the Servicer and the Seller
contained in each Related Document shall be true and correct as of the Amendment
Effective Date.
(g) No Termination Event. No Incipient Termination Event or Termination
Event hereunder or any event of default under (and as defined in) the Senior
Credit Facility shall have
occurred and be continuing or would result after giving effect to any of the
transactions contemplated in the Related Documents or the Amendment on the
Amendment Effective Date.
(h) Senior Credit Facility; Intercreditor Agreement. The Administrative
Agent shall have received confirmation acceptable to it that the transactions
under this Agreement, the Sale Agreement, the Contribution Agreement and the
other Related Documents do not violate the Senior Credit Facility, and the
Senior Credit Facility Collateral Agent shall have entered into an amendment to
the Original Intercreditor Agreement (in form and substance satisfactory to the
Purchasers and the Administrative Agent) with the Seller, the Servicer and the
Administrative Agent.
(i) Confirmation of Commercial Paper Ratings. The Administrative Agent
shall have received written confirmation from each Rating Agency that the
then-current rating of the Commercial Paper shall not be withdrawn or downgraded
after giving effect to the Amendment and the transactions contemplated thereby.
(j) Audit and Review of Transferred Receivables. The Purchasers and the
Administrative Agent shall have completed an audit and pre-funding review of the
Transferred Receivables, including, without limitation (i) a review of a report
listing all of the Included Obligors with aging balances in Excel(R) format,
(ii) procedures to segregate Transferred Receivables, including segregation of
collections of Transferred Receivables, (iii) an aging comparative with respect
to Transferred Receivables and (iv) a receivable rollforward with respect to
Transferred Receivables, each of the foregoing with results satisfactory to the
Administrative Agent in its sole discretion.
(k) Payment of Taxes. The Parent, the Servicer, the Originator, the
Buyer or the Seller, as applicable, shall have paid all taxes required to be
paid by it on the Amendment Effective Date, including, but not limited to, any
stamp duty which may be imposed as a result of closing the transaction
contemplated under the Amendment and under the other Related Documents executed
in connection therewith.
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EXHIBIT A
Schedule of Documents
In addition to, and not in limitation of, the conditions specified in
Omnibus Amendment No. 1 described below, the following documents must be
received by the Administrative Agent in form and substance satisfactory to the
Purchasers and the Administrative Agent on or prior to the Amendment Effective
Date:
A. AMENDMENT
Omnibus Amendment No. 1 to Receivables Purchase and
Contribution Agreement, Receivables Sale and Contribution Agreement and
Receivables Purchase and Servicing Agreement, dated as of May 31, 2002, by and
among AdvancePCS, AdvancePCS Health, L.P. AFC Receivables Holding Corporation,
Advance Funding Corporation, ADVP Management L.P., Redwood Receivables
Corporation, and General Electric Capital Corporation.
B. LEGAL OPINIONS
1. Opinion of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ L.L.P., outside counsel
for the Parent, Originator, Holding, the Servicer and the Seller, regarding,
among other things, incorporation, good standing, authorization, enforceability,
non-contravention, no litigation, and no conflicts with the Senior Credit
Facility.
2. Opinion of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ L.L.P., outside counsel
for the Parent, Originator, Holding and the Seller, regarding, among other
things, the perfection and first priority of security interests in all
Receivables in favor of Holdings and in all Transferred Receivables in favor of
the Seller and the assignment of each (excluding Excluded Receivables) to the
Administrative Agent and the first priority perfected security interest in all
Transferred Receivables and all other collateral in favor of the Administrative
Agent (for the benefit of itself and the Purchasers).
3. Opinion of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ L.L.P., outside counsel
for the Originator, Holding and the Sellers, regarding (x) true sale in
connection with (i) the sale and contribution of Receivables from the Originator
to Holding pursuant to the Contribution Agreement and (ii) the sale and
contribution of Transferred Receivables from Holding to the Seller pursuant to
the Sale Agreement and (y) substantive consolidation.
C. CORPORATE DOCUMENTS
ORIGINATOR:
1. Certificate of Limited Partnership for the Originator, certified by
the Secretary of State of the state of its formation.
2. Certificate of existence for the Originator issued by the Secretary
of State of the state of its formation.
3. A certificate of the Secretary or Assistant Secretary of the
Originator certifying copies of (a) the Certificate of Limited Partnership of
the Originator; (b) the limited partnership agreement of the Originator; (c) the
resolutions of the Originator's directors approving the Amendment and the
Related Documents to be executed in connection therewith to which the Originator
is or will be a party and the other instruments, documents and agreements to be
executed and/or delivered by it in connection therewith and the transactions
contemplated thereby; and (d) the names and true signatures of the incumbent
officers of the Originator authorized to sign the Amendment and the Related
Documents to be executed in connection therewith; and certifying such other
matters as may be requested by the Purchasers or the Administrative Agent.
HOLDING:
1. Certificate of Incorporation for Holding certified by the Secretary
of State of the state of its formation.
2. Certificate of existence for Holding issued by the Secretary of
State of the state of its formation.
3. A certificate of the Secretary of Holding, certifying copies of (a)
the certificate of incorporation of Holding; (b) the by-laws of Holding; (c) the
resolutions of Holding's directors approving the Amendment and the Related
Documents to be executed in connection therewith to which Holding is or will be
a party and the other instruments, documents and agreements to be executed
and/or delivered by it in connection therewith and the transactions contemplated
thereby; and (d) the names and true signatures of the incumbent officers of
Holding authorized to sign the Amendment and the Related Documents to be
executed in connection therewith; and certifying such other matters as may be
requested by the Purchasers or the Administrative Agent.
SELLER:
1. Certificate of Incorporation for Seller certified by the Secretary
of State of the state of its formation.
2. Certificate of existence for Seller issued by the Secretary of State
of the state of its formation.
3. A certificate of the Secretary of Seller, certifying copies of (a)
the certificate of incorporation of Seller; (b) the by-laws of Seller; (c) the
resolutions of Seller's directors approving the Amendment and the Related
Documents to be executed in connection therewith to which Seller is or will be a
party and the other instruments, documents and agreements to be executed and/or
delivered by it in connection therewith and the transactions contemplated
thereby; and (d) the names and true signatures of the incumbent officers of
Seller authorized to sign the Amendment and the Related Documents to be executed
in connection therewith; and certifying such other matters as may be requested
by the Purchasers or the Administrative Agent.
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PARENT:
1. Certificate of Incorporation for Parent certified by the Secretary
of State of the state of its formation.
2. Certificate of existence for Parent issued by the Secretary of State
of the state of its formation.
3. A certificate of the Secretary of Parent, certifying copies of (a)
the certificate of incorporation of Parent; (b) the by-laws of Parent; (c) the
resolutions of Parent's directors approving the Amendment and the Related
Documents to be executed in connection therewith to which Parent is or will be a
party and the other instruments, documents and agreements to be executed and/or
delivered by it in connection therewith and the transactions contemplated
thereby; and (d) the names and true signatures of the incumbent officers of
Parent authorized to sign the Amendment and the Related Documents to be executed
in connection therewith; and certifying such other matters as may be requested
by the Purchasers or the Administrative Agent.
SERVICER:
1. Certificate of Limited Partnership for the Servicer, certified by
the Secretary of State of the state of its formation.
2. Certificate of existence for the Servicer issued by the Secretary of
State of the state of its formation.
3. A certificate of the Secretary or Assistant Secretary of the
Servicer certifying copies of (a) the Certificate of Limited Partnership of the
Servicer; (b) the limited partnership agreement of the Servicer; (c) the
resolutions of the Servicer's directors approving the Amendment and the Related
Documents to be executed in connection therewith to which the Servicer is or
will be a party and the other instruments, documents and agreements to be
executed and/or delivered by it in connection therewith and the transactions
contemplated thereby; and (d) the names and true signatures of the incumbent
officers of the Servicer authorized to sign the Amendment and the Related
Documents to be executed in connection therewith; and certifying such other
matters as may be requested by the Purchasers or the Administrative Agent.
▇. ▇▇▇▇ SEARCHES, FILINGS AND RELEASES
1. PRE-CLOSING SEARCHES:
a. Pre-closing UCC search reports under each of the Originator's,
Holding's, and the Seller's names listed on Attachment I attached hereto in each
of the offices (as relevant to such entity) of the Secretary of State of the
States of Delaware, Texas, California, Maryland, and Arizona.
b. Pre-closing tax lien, pending suit and judgment searches under each
of the Originator's, Holding's and the Seller's names listed on Attachment I
attached hereto in each of
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the offices (as relevant to such entity) of the Secretary of State of the States
of Delaware, Texas, California, Maryland, and Arizona.
2. UCC-1 FINANCING STATEMENTS:
a. Copies of Amendments to UCC-1 financing statements in respect of the
Receivables naming the Originator as debtor/seller and Holding as secured
party/purchaser and the Administrative Agent, for the benefit of itself, the
Conduit Purchaser and the Committed Purchaser, as assignee as filed with the
Secretary of State of Delaware.
b. Copies of Amendments to UCC-1 financing statements in respect of the
Transferred Receivables naming Holding as debtor/seller and Seller as secured
party/purchaser and the Administrative Agent, for the benefit of itself, the
Conduit Purchaser and the Committed Purchaser, as assignee as filed with the
Secretary of State of Delaware.
c. Copies of Amendments to UCC-1 financing statements in respect of the
Transferred Receivables naming the Seller as debtor/seller and the
Administrative Agent, for the benefit of itself, the Conduit Purchaser and the
Committed Purchaser as assignee as filed with the Secretary of State of
Delaware.
3. POST-FILING SEARCHES:
a. Post-filing UCC search reports against the Originator confirming
that each of the Amendments to UCC-1 Financing Statements described in item 2a
above has been filed and is of record in the jurisdiction in which it was filed.
b. Post-filing UCC search reports against Holding confirming that each
of the Amendments to UCC-1 Financing Statements described in item 2b above has
been filed and is of record in the jurisdiction in which it was filed.
c. Post-filing UCC search reports against Seller confirming that each
of the Amendments to UCC-1 Financing Statements described in item 2c above has
been filed and is of record in the jurisdiction in which it was filed.
4. RELEASES:
Any documents evidencing any lien releases deemed necessary by any
Purchaser or the Administrative Agent
E. OTHER AGREEMENTS AND DOCUMENTS
1. The Omnibus Amendment Fee Letter, dated May 31, 2002, among the
Receivables Seller, the Administrative Agent, the Committed Purchaser and the
Conduit Purchaser.
2. The Parent Guaranty Confirmation, dated as of May 31, 2002, executed
by the Parent in favor of the Seller, the Receivables Seller, the Originator and
the Servicer.
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3. Consent Under Intercreditor Agreement, dated as of May 31, 2002,
among GE Capital, Bank of America, N.A., the Receivables Seller, the Originator,
the Receivables Transferor, AdvancePCS Puerto Rico, Inc., the Servicer and the
Conduit Purchaser.
F. MISCELLANEOUS
1. Confirmation that the Rating Agency Condition will be satisfied
after giving effect to the execution, delivery and consummation of the Amendment
by Redwood.
2. Copy of executed Amendment No. 4 the Credit Agreement, dated as of
May 29, 2002 by and among AdvancePCS, the Subsidiary Guarantors party thereto,
the Lenders party thereto, Bank One, N.A., as documentation Agent, Bank of
America, N.A., as collateral agent and administrative agent, ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as book-runner, lead arranger and
syndication agent and Banc of America Securities LLC, as joint book-runner and
joint lead arranger, in form and substance satisfactory to the Purchasers and
the Administrative Agent
3. Copy of written confirmation of Bank of America, N.A., as
administrative agent (the "Credit Facility Administrative Agent") under the
Senior Credit Facility that the Related Documents, as amended by Omnibus
Amendment No. 1 are acceptable to the Credit Facility Administrative Agent.
4. An executed copy of the amended and restated Intercompany Note,
dated May 31, 2002, in the form of Exhibit 6A.2(a) to the Omnibus Amendment.
5. A copy of the Intercompany Note, dated December 10, 2001, marked
"Cancelled" by the holder thereof.
6. Such other consents, opinions, documents or instruments as the
Purchasers or the Administrative Agent may request.
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ATTACHMENT I
TO
EXHIBIT A
NAMES SEARCHED
1. AdvancePCS
2. AdvancePCS Health L.P.
3. AFC Receivables Holding Corporation
4. Advance Funding Corporation
5. Previous names for AdvancePCS Health L.P.
EXHIBIT 2.3(a)
Form of Investment Base Certificate
(see attached)
A-2
EXHIBIT 3.1(a)(iv)
Form of Monthly Report
(see attached)
A-3
ANNEX 6A.2(a)
Form of Intercompany Note
(see attached)
A-4
