EXHIBIT 4.2
EXECUTION COPY
TENTH AMENDMENT
TO
RECEIVABLES PURCHASE AGREEMENT
THIS TENTH AMENDMENT, dated as of December 2, 2002 (this "Amendment"),
to the Receivables Purchase Agreement dated as of May 14, 1999 (as in effect on
the date hereof, the "Receivables Purchase Agreement"), among AMERISOURCE
RECEIVABLES FINANCIAL CORPORATION, a Delaware corporation (the "Seller"),
AMERISOURCEBERGEN DRUG CORPORATION (formerly known as AmeriSource Corporation),
a Delaware corporation (the "Servicer" or "AmeriSource"), AMERISOURCEBERGEN
SERVICES CORPORATION (formerly known as AmeriSource Health Corporation), a
Delaware corporation (the "Guarantor"), DELAWARE FUNDING CORPORATION, a Delaware
corporation (together with its successors and assigns, the "Buyer"), and
JPMORGAN CHASE BANK, a banking corporation organized under the laws of the State
of New York, as administrative agent (together with its successors and assigns,
the "Administrative Agent") for the Owners (as defined in the Receivables
Purchase Agreement), is by and among the parties listed above. Unless otherwise
defined in this Amendment, capitalized terms shall have the meanings assigned to
such terms in the Receivables Purchase Agreement.
R E C I T A L S
WHEREAS, the parties to the Receivables Purchase Agreement wish to
make certain amendments to the Receivables Purchase Agreement as set forth
herein.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for good and sufficient consideration, the parties hereto,
intending to be legally bound, do hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Receivables Purchase
Agreement.
(i) The defined terms "ARFC Designated Distribution Center," "BH2
Designated Distribution Center," "BH2 Designated Receivables," "Lockbox
Account," "Permitted Lockbox," "Net Investment" and "Purchase Documents"
appearing in Section 1.01 of the Receivables Purchase Agreement are hereby
deleted and replaced, respectively, with the following:
"ARFC Designated Distribution Center" shall mean any Distribution Center of
AmeriSource identified on Exhibit K hereto as an "ARFC Designated
Distribution Center," and shall include, without limitation, each
distribution center of each "Seller" party to the Affiliate Purchase
Agreement on and as of September 30, 2002 (including, without limitation,
Xxxxx Xxxxxxxx Company, Inc. and X.X. Xxxxx Healthcare, Inc.), as such
Exhibit K may be amended from time to time pursuant to and in connection
with a Distribution Center Consolidation.
"BH2 Designated Distribution Center" shall mean any Distribution Center of
AmeriSource identified on Exhibit K hereto as a "BH2 Designated
Distribution Center," as such Exhibit
K may be amended from time to time pursuant to and in connection with a
Distribution Center Consolidation.
"BH2 Designated Receivables" shall mean all Receivables (as defined in the
AmeriSource Purchase Agreement) that are generated by AmeriSource at any
BH2 Designated Distribution Center; provided that any such Receivables that
become ARFC Designated Receivables in connection with a Distribution Center
Consolidation shall no longer constitute BH2 Designated Receivables.
"Lockbox Account" shall mean a demand deposit account identified on Exhibit
J hereto maintained with a Permitted Lockbox Bank pursuant to the Lockbox
Servicing Instructions for the purpose of depositing payments made by the
Obligors, as such Exhibit J may be amended, supplemented and otherwise
modified from time to time to reflect a Distribution Center Consolidation,
and such other accounts as the Buyer may establish from time to time in
accordance with this Agreement.
"Net Investment" shall mean, at any time, the sum of the amounts of
Purchase Price paid to the Seller for each Incremental Purchase less the
aggregate amount of Collections and other amounts received and applied by
the Servicer or the Administrative Agent to reduce such Net Investment
pursuant to Sections 2.08(b), 2.08(e), 2.08(f), 2.09, 2.11(b) and 2.17(a)
hereof; provided that the Net Investment shall be increased by the amount
of any Collections or other amounts so received if at any time the
distribution of such Collections or other amounts is rescinded or must
otherwise be returned or restored for any reason.
"Permitted Lockbox" shall mean a post office box or other mailing location
identified on Exhibit J hereto maintained by a Permitted Lockbox Bank
pursuant to the Lockbox Servicing Instructions for the purpose of receiving
payments made by the Obligors for subsequent deposit into a related Lockbox
Account, as such Exhibit J may be amended, supplemented and otherwise
modified from time to time to reflect a Distribution Center Consolidation,
and such other post office box or other mailing location as the Buyer may
establish from time to time in accordance with this Agreement.
"Purchase Documents" shall mean, collectively, this Agreement, the Purchase
Agreements, each Reconveyance Agreement, each Purchaser Interest
Reconveyance Agreement, the Lockbox Servicing Instructions, the
Concentration Account Servicing Instructions, the B/A Concentration Account
Agreement, the Account Transfer Letters and all other agreements, documents
and instruments entered into and delivered by the Seller, any Originator or
the Servicer in connection with the transactions contemplated by this
Agreement.
(ii) The following new defined terms are hereby inserted in Section 1.01 of
the Receivables Purchase Agreement in appropriate alphabetical order:
"ARFC Designated Receivables" shall mean, collectively (but without
duplication) (i) all Receivables (as defined in the AmeriSource Purchase
Agreement) acquired by AmeriSource, as buyer, under the Affiliate Purchase
Agreement and (ii) all Receivables (as defined in the AmeriSource Purchase
Agreement) generated at any ARFC Designated Distribution Center; provided
that any such Receivables that become BH2 Designated Receivables in
connection with a Distribution Center Consolidation shall no longer
constitute ARFC Designated Receivables.
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"Distribution Center Consolidation" shall mean any consolidation of a BH2
Designated Distribution Center into an ARFC Designated Distribution Center
and any consolidation of an ARFC Designated Distribution Center into a BH2
Designated Distribution Center, in each case, pursuant to, and in
accordance with, Section 2.5A of the AmeriSource Purchase Agreement.
"Purchaser Interest Reconveyance Agreement" shall mean a purchaser interest
reconveyance agreement in substantially the form of Exhibit L attached
hereto.
"Reassigned Accounts" shall have the meaning specified in Section 4.09A(i)
hereof.
"Reconveyance Agreement" shall mean a reconveyance agreement substantially
in the form of Exhibit I to the AmeriSource Purchase Agreement.
SECTION 2. Amendments to Section 2.17 of the Receivable Purchase Agreement.
Section 2.17 of the Receivables Purchase Agreement is hereby re-titled
"Distribution Center Consolidations" and subsection (a) thereof is hereby
deleted and replaced with the following:
(a) If, in connection with a Distribution Center Consolidation of an ARFC
Designated Distribution Center into a BH2 Designated Distribution Center,
AmeriSource repurchases the Receivables originated at such ARFC Designated
Distribution Center, the Administrative Agent and the Buyer shall sell and
reconvey to the Seller the Purchased Interest in such Receivables, subject
to the satisfaction of the following conditions precedent:
(i) the Administrative Agent shall have received, at least 60 days
(or, in the case of the first such Distribution Center Consolidation
only, at least one day) prior to such Distribution Center
Consolidation, written notice detailing the proposed consolidation
(including, without limitation, identifying the specific Distribution
Centers involved in such Distribution Center Consolidation,
identifying the Permitted Lockboxes and Lockbox Accounts involved in
(or otherwise affected by or related to) such Distribution Center
Consolidation (including any such Permitted Lockboxes and/or Lockbox
Accounts to be opened, closed or transferred in connection therewith),
identifying the Obligors involved in (or otherwise affected by or
related to) such Distribution Center Consolidation and setting forth
the actions proposed to be taken with respect thereto) and specifying
the proposed date of such consolidation;
(ii) each of the conditions precedent set forth in Section 2.5A(a),
(b), (c), (d), (f), (g), (h) and (i) shall have been satisfied;
(iii) the Seller, the Buyer and the Administrative Agent shall have
executed and delivered a Purchaser Interest Reconveyance Agreement
relating to the Receivables to be repurchased in connection with such
Distribution Center Consolidation and the Seller shall have paid to
the Administrative Agent (for application in accordance with this
Agreement as if such payment were a Collection) any amounts due with
respect thereto as specified in such Purchaser Interest Reconveyance
Agreement (it being understood and agreed that the Seller shall
cooperate with the Administrative Agent or the Buyer, as applicable,
in making appropriate arrangements in the event the Buyer is unable to
use all of the amount so paid by the Seller to repay Commercial Paper
on the date so paid);
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(iv) the Administrative Agent shall have received either an
updated Monthly Report or another report (in form and substance
satisfactory to the Administrative Agent) signed by a
Responsible Officer of the Servicer, dated the date of such
Distribution Center Consolidation, demonstrating (in either
case) by calculations in detail satisfactory to the
Administrative Agent that the Buyer's Percentage Interest does
not exceed 100%, both before and after giving effect to such
Distribution Center Consolidation (including, without
limitation, after giving effect to the repurchase of Receivables
in connection therewith and any payment made pursuant to the
related Purchaser Interest Reconveyance Agreement); and
(v) an amended and restated Exhibit K to reflect such
Distribution Center Consolidation shall have been prepared by
the Seller (or the Servicer) and delivered to the Administrative
Agent.
SECTION 3. Addition of New Section 4.09A to the Receivables Purchase
Agreement. The following new Section 4.09A is hereby inserted immediately
after Section 4.09 of the Receivables Purchase Agreement:
4.09A. Distribution Center Consolidations.
(i) Notwithstanding anything to the contrary contained in Section
4.09, upon the occurrence of a Distribution Center Consolidation in
which an ARFC Designated Distribution Center is consolidated into a
BH2 Designated Distribution Center, and upon satisfaction of the
related conditions precedent in Section 2.5A of the AmeriSource
Purchase Agreement (other than subsection (e) thereof) and Section
2.17(a) hereof, (A) the Seller shall deliver an amended and restated
Exhibit J hereto to delete reference to each Lockbox Account and
Permitted Lockbox related to such ARFC Designated Distribution Center
(collectively, the "Reassigned Accounts") and (B)(1) the Seller shall
transfer such Reassigned Accounts to AmeriSource or any other Person
designated by AmeriSource and the Seller shall request the
Administrative Agent terminate or assign, and the Administrative Agent
agrees to terminate or assign (as requested by the Seller), any
Account Transfer Letter with respect to such Reassigned Accounts or
(2) the Seller and the Administrative Agent shall take such other
actions with respect to such Reassigned Accounts as the Seller and the
Administrative Agent may agree.
(ii) Upon the occurrence of a Distribution Center Consolidation in
which a BH2 Designated Distribution Center is consolidated into an
ARFC Designated Distribution Center, and upon satisfaction of the
related conditions precedent in Section 2.5A of the AmeriSource
Purchase Agreement (other than subsection (d) thereof), (A) the Seller
shall deliver an amended and restated Exhibit J hereto to add each
lockbox account and lockbox related to such BH2 Designated
Distribution Center and (B) the Seller shall (1) provide the
Administrative Agent with satisfactory evidence that such lockbox
accounts and lockboxes have been transferred to the Seller and either
(x) deliver a fully executed Account Transfer Letter with respect to
each such lockbox account and lockbox or (y) deliver an assignment (in
form and substance satisfactory to the Administrative Agent) of the
account control agreement in effect with respect to the security
interest of the Purchasers (as defined in the BH2/GE Receivables
Purchase Agreement) in such lockbox accounts and lockboxes or (2) take
such other actions with respect to such lockbox accounts and lockboxes
as the Seller and the Administrative Agent may agree.
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(iii) Without limiting the generality of any other provision of this
Agreement, the Seller shall furnish, or cause to be furnished to the
Administrative Agent as promptly as practicable from time to time,
such information with respect to any Permitted Lockbox and/or Lockbox
Account involved in (or otherwise affected by or related to) a
Distribution Center including, without limitation, any such Permitted
Lockbox and/or Lockbox Account opened, closed or transferred in
connection therewith, in such form and detail, as the Administrative
Agent may request.
SECTION 4. Amendment to Section 4.10 of the Receivables Purchase
Agreement. The period appearing at the end of Section 4.10(g) of the
Receivables Purchase Agreement is hereby replaced with "; or" and the
following new subsection (h) is inserted immediately thereafter:
(h) there shall have occurred any event which materially and adversely
impairs in the reasonable judgment of the Administrative Agent the
ability of the Servicer to distinguish between ARFC Designated
Receivables and BH2 Designated Receivables or to segregate Collections
relating to ARFC Designated Receivables from collections relating to
BH2 Designated Receivables.
SECTION 5. Amendment to Section 5.03(p) of the Receivables Purchase
Agreement. Section 5.03(p) of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
(p) Distribution Centers; Etc. Exhibit K attached hereto identifies
all ARFC Designated Distribution Centers and all BH2 Designated
Distribution Centers. Exhibit J attached hereto identifies each bank
and other financial institution at which each Distribution Center
maintains post office boxes and deposit accounts for the receipt of
collections for the portion of the Aggregate Receivables generated at
such Distribution Center and identifies the related post office box
address and the related account numbers. The Servicer represents and
warrants that AmeriSource does not generate or otherwise create or
maintain any Receivables (as defined in the AmeriSource Purchase
Agreement) that are neither ARFC Designated Receivables nor BH2
Designated Receivables. The Servicer further represents and warrants
that Exhibit K attached hereto includes as ARFC Designated
Distribution Centers all distribution centers of each "Seller" party
to the Affiliate Purchase Agreement.
SECTION 6. Addition of New Section 6.01(q) to the Receivables Purchase
Agreement. The following new Section 6.01(q) is hereby inserted immediately
after Section 6.01(p) of the Receivables Purchase Agreement:
(q) Permitted Lockboxes and Lockbox Accounts. Without limiting the
generality of Section 2.17(a)(v) hereof, the Seller shall deliver a
revised Exhibit J and a revised Exhibit K each time that it
establishes a new Permitted Lockbox or Lockbox Account and each time
it closes a Permitted Lockbox or Lockbox Account.
SECTION 7. Amendment to Section 6.02(c) of the Receivables Purchase
Agreement. Section 6.02(c) of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
(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;
provided that (x) the Seller may merge with another Person if (A) the
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Seller is the corporation surviving such merger and (B) immediately
after giving effect to such merger, no Termination Event shall have
occurred and be continuing and (y) subject to satisfaction of the
conditions set forth in Section 2.17(a) hereof, the Seller may sell or
transfer Receivables to AmeriSource pursuant to Section 2.5A of the
AmeriSource Purchase Agreement.
SECTION 8. Amendments to Section 7.01 of the Receivables Purchase
Agreement. The period appearing at the end of Section 7.01(v) of the
Receivables Purchase Agreement is hereby replaced with "; or" and the
following new subsections (w), (x) and (y) are hereby inserted immediately
thereafter:
(w) any "Termination Event" or "Event of Servicer Termination" shall
occur under the BH2/GE Receivables Purchase Agreement; or
(x) an Event of Bankruptcy shall occur with respect to BH2; or
(y) any breach by General Electric Capital Corporation shall occur and
be continuing under the Intercreditor Agreement.
SECTION 9. Amendment to Section 7.02 of the Receivables Purchase
Agreement. The proviso to the first sentence of Section 7.02(a) of the
Receivables Purchase Agreement is hereby deleted and replaced with the
following:
; provided that, in the case of a Termination Event under Section
7.01(k) or (x) hereof, such obligations of the Owners hereunder shall
be automatically terminated without any action on the part of the
Administrative Agent and all outstanding Tranche Periods may, in the
sole discretion of the Administrative Agent or APA Purchasers, be
ended.
SECTION 10. Representations and Warranties; Etc. In order to induce
the Buyer and the Administrative Agent to execute and deliver this
Amendment, (i) the Seller hereby represents and warrants on the date hereof
(after giving effect to this Amendment and the Third Amendment, dated as of
the date hereof, to the AmeriSource Purchase Agreement (the "Third
Amendment")), that each of the representations and warranties set forth in
Section 5.01 of the Receivables Purchase Agreement is true and correct,
(ii) the Guarantor hereby represents and warrants on the date hereof (after
giving effect to this Amendment and the Third Amendment) that each of the
representations and warranties set forth in Sections 5.01(a), (b), (c) (the
first sentence thereof), (d), (e), (g), (h), (i), (k), (m), (p) and (q) of
the Receivables Purchase Agreement is true and correct; provided that all
references therein to "Seller" shall mean and be a reference to
"Guarantor," (iii) the Servicer hereby represents and warrants on the date
hereof (after giving effect to this Amendment and the Third Amendment) that
each of the representations and warranties in Section 5.03 of the
Receivables Purchase Agreement is true and correct; provided that, in the
case of preceding clauses (i), (ii) and (iii), as applicable, all
references in Section 5.01 or 5.03 of the Receivables Purchase Agreement to
"this Agreement" or the "Purchase Documents" shall mean and be a reference
to, or shall include, the Receivables Purchase Agreement (after giving
effect to this Amendment and the Third Amendment) and (iv) each of the
Seller and the Servicer hereby represents and warrants, on the date hereof
(both before and after giving effect to this Amendment and the Third
Amendment), that no event has occurred and is continuing and no condition
exists which constitutes a Termination Event or Potential Termination
Event.
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SECTION 11. Amendments to Exhibits. Exhibit L attached hereto is hereby
inserted immediately after Exhibit K attached to the Receivables Purchase
Agreement.
SECTION 12. Receivables Purchase Agreement in Full Force and Effect, as
Amended. Except as specifically stated herein, all of the terms and conditions
of the Receivables Purchase Agreement shall remain in full force and effect. All
references to the Receivables Purchase Agreement in any Purchase Document or any
other document or instrument shall be deemed to mean the Receivables Purchase
Agreement, as amended by this Amendment. This Amendment shall not constitute a
novation of the Receivables Purchase Agreement, but shall constitute an
amendment thereto. The parties hereto agree to be bound by the terms and
obligations of the Receivables Purchase Agreement, as amended by this Amendment,
as though the terms and obligations of the Receivables Purchase Agreement were
set forth herein.
SECTION 13. Effectiveness. This Amendment shall become effective in
accordance with its terms upon receipt by the Administrative Agent of each of
the following:
(a) an executed counterpart of this Amendment from each party hereto;
(b) Long form good standing and tax certificates for each of the Seller,
AmeriSource and the Guarantor, in each case, issued by the Secretary of State of
Delaware and the Secretary of the Commonwealth of Pennsylvania, each such
certificate to be dated a date reasonably near the date hereof;
(c) A certificate of the secretary or assistant secretary of AmeriSource,
dated the effective date hereof, certifying that no changes have been made to
the certificate of incorporation or bylaws of AmeriSource since a date
acceptable to the Administrative Agent and certifying and attaching resolutions
authorizing this Amendment and the Third Amendment and an incumbency
certificate;
(d) A certificate of the secretary or an assistant secretary of the Seller,
dated the effective date hereof, certifying that no changes have been made to
the certificate of incorporation or bylaws of the Seller and certifying and
attaching resolutions authorizing this Amendment and the Third Amendment and an
incumbency certificate;
(e) An officer's certificate of AmeriSource dated the effective date
hereof, executed by a Responsible Officer of AmeriSource, certifying that (i)
the representations and warranties contained in Sections 3.1 and 3.2 of the
AmeriSource Purchase Agreement are true and correct as if such representations
and warranties were made as of the date hereof, both before and after giving
effect to this Amendment and the Third Amendment, (ii) no Servicing Default
exists as of the date hereof, both before and after giving effect to this
Amendment and the Third Amendment, and (iii) no financing statement naming
AmeriSource (or any entity merged with or into AmeriSource), as debtor, and
covering the Transferred Receivables (as defined in the AmeriSource Purchase
Agreement has been filed against AmeriSource (or any such entity merged with or
into AmeriSource), except certain financing statements have been filed by (A)
the Seller, in its capacity as the buyer, under the AmeriSource Purchase
Agreement, (B) JPMorgan Chase Bank, as Collateral Agent under the Security
Agreement, all of which Transferred Receivables have been (and will continue to
be) released from such financing statements pursuant to the terms of the Credit
Agreement and the Security Agreement and (C) BH2 under and in accordance with
the AmeriSource/BH2 Purchase Agreement and by General Electric Capital
Corporation under and in accordance with the BH2/GE Receivables Purchase
Agreement against Bergen Xxxxxxxx Drug
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Company, a predecessor in interest to AmeriSource, all of which Transferred
Receivables have been (and will continue to be), by amendment to such financing
statements, released or excluded from such financing statements;
(f) A favorable opinion or opinions of counsel for AmeriSource, dated the
effective date hereof, relating to corporate matters, legality, validity and
enforceability of the Purchase Documents (as amended), no conflicts with the
Credit Agreement (or related security documents), perfection and priority of the
Seller's security interest in the Receivables and such other matters as the
Administrative Agent may reasonably request;
(g) A favorable opinion or opinions of counsel for the Seller, dated the
effective date hereof, relating to perfection and priority, of the
Administrative Agent's undivided ownership interest in the Receivables (for the
benefit of the Owners), true sale and nonconsolidation (between AmeriSource and
the Seller) and such other matters as the Administrative Agent may reasonably
request;
(h) A favorable opinion or opinions of counsel for the Guarantor, dated the
effective date hereof, relating to corporate matters, legality, validity and
enforceability of the Purchase Documents (as amended), no conflicts with the
Credit Agreement (or related security documents) and such other matters as the
Administrative Agent may reasonably request;
(i) An executed copy of the Third Amendment to the AmeriSource Purchase
Agreement, which amendment shall have become effective in accordance with the
terms thereof;
(j) An executed copy of an amendment to the Fee Letter, which amendment
shall have become effective in accordance with the terms thereof;
(k) Executed copies of the Second Amendment, dated as of the date hereof,
to the AmeriSource/BH2 Purchase Agreement and the Fourth Amendment, dated as of
the date hereof, to the BH2/GE Receivables Purchase Agreement, each of which
amendments shall be in form and substance satisfactory to the Administrative
Agent and shall have become effective in accordance with its respective terms;
(l) Payment in full of all legal fees and expenses incurred by the
Administrative Agent in connection with the negotiation and preparation of this
Amendment and the Seventh Amendment, Eighth Amendment and Ninth Amendment to the
Receivables Purchase Agreement and otherwise in connection with the Purchase
Documents, but only to the extent that an invoice therefor has been rendered;
(m) A duly executed consent with respect to the Credit Agreement, which
consent shall be in form and substance satisfactory to the Administrative Agent
and shall have become effective in accordance with its terms; and
(n) Such other documents as the Buyer or the Administrative Agent shall
reasonably request.
SECTION 14. Counterparts. This Amendment may be executed in any number of
counterparts and by separate parties hereto on separate counterparts (including
by way of facsimile transmission), each of which when executed shall be deemed
an original, but all such counterparts taken together shall constitute one and
the same instrument.
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SECTION 15. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above set forth.
DELAWARE FUNDING CORPORATION
By: JPMorgan Chase Bank, as attorney-in-fact for
Delaware Funding Corporation
By _______________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By _______________________________________
Name:
Title:
AMERISOURCE RECEIVABLES FINANCIAL CORPORATION
By _______________________________________
Name:
Title:
AMERISOURCEBERGEN DRUG CORPORATION
By _______________________________________
Name:
Title:
AMERISOURCEBERGEN SERVICES CORPORATION
By _______________________________________
Name:
Title:
WITH THE CONSENT OF:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent under the BH2/GE
Receivables Purchase Agreement
By__________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
[Signature Page to the Tenth Amendment to the AmeriSource Receivables Purchase
Agreement]
EXHIBIT L
to
Receivables Purchase Agreement
FORM OF
PURCHASER INTEREST RECONVEYANCE AGREEMENT
THIS PURCHASER INTEREST RECONVEYANCE AGREEMENT (this "Agreement") is made
and entered into as of [INSERT DATE], among AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION, a Delaware corporation ("Seller"), DELAWARE FUNDING CORPORATION, a
Delaware corporation ("Buyer") and JPMORGAN CHASE BANK, as administration agent
(in such capacity, the "Administrative Agent"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Receivables Purchase Agreement (as defined below).
Statement of Facts
Pursuant to that certain Receivables Purchase Agreement, dated as of May
14, 1999, among the Seller, the Servicer, the Guarantor, the Buyer and the
Administrative Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "Receivable Purchase Agreement"), the Administrative
Agent (on behalf of the Owners) has purchased from the Seller undivided
percentage interests in certain trade receivables (and related rights thereto)
owned by the Seller and generated at ARFC Designated Distribution Centers.
AmeriSource has given notice to the Seller of Amerisource's intent to
consolidate the Consolidating Location (defined below) into a BH2 Designated
Distribution Center in accordance with Section 2.5A of the AmeriSource Purchase
Agreement and, in connection therewith, to repurchase from the Seller all
outstanding ARFC Designated Receivables with respect to the Consolidating
Location (as set forth in Schedule I hereto or in such other format as is
acceptable to the Administrative Agent, the "Reassigned Receivables"), and to
have the Seller release its security interests therein. Pursuant to Section
2.17(a) of the Receivables Purchase Agreement, upon the request of the Seller,
the Buyer and the Administrative Agent shall reconvey the Purchased Interest in
such Reassigned Receivables as provided in this Agreement.
Statement of Terms
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Distribution Center Consolidation. On the date hereof, AmeriSource will
consolidate the ARFC Designated Distribution Center located at [insert location
details here] (the "Consolidating Location") into the BH2 Designated
Distribution Center located at [insert location details here]. On the date
hereof, Exhibit K to the Receivables Purchase Agreement is hereby amended to
provide that the Consolidating Location is not an "ARFC Designated Distribution
Center" but is a "BH2 Designated Distribution Center."
2. Reconveyance by Purchasers.
a. In connection with the Distribution Center Consolidation detailed
in Paragraph 1 above, and subject to the terms and conditions of this
Agreement, the Buyer and the Administrative Agent hereby sell, assign,
transfer, and convey to the Seller without recourse, and the Seller
hereby accepts, purchases and receives, all of the Buyer's and the
Administrative Agent's right, title and interest in and to the
Reassigned Receivables. In consideration of the transfer and
conveyance hereunder to the Seller of the Reassigned Receivables, the
Seller shall pay to the Administrative Agent (for the benefit of the
Owners) [the amount (if any) necessary to cause the Buyer's Percentage
Interest not to exceed 100%, after giving effect to the transfer of
the Reassigned Receivables to the Seller].
b. Subject to the terms and conditions of this Agreement, the
Administrative Agent and the Buyer hereby release and terminate all
security interests or other rights or interests that the
Administrative Agent and the Buyer may have in (i) the Reassigned
Receivables, (ii) AmeriSource's rights in the merchandise (including
returned goods) relating to the Reassigned Receivables, (iii) all
Reassigned Accounts, (iv) any other Related Security to the extent
relating to the foregoing and (v) all proceeds, substitutions and
replacements for each of the foregoing (the "Released Security
Interest").
3. Effectiveness of this Agreement. This Agreement shall be effective
as of the date hereof when signed by each of the parties hereto.
4. Further Assurances. The Administrative Agent hereby agrees to
execute and deliver such UCC financing statements (other than UCC-1 financing
statements) and such other documents as the Seller may reasonably request from
time to time in order to more fully effectuate the transactions contemplated by
this Agreement (including, without limitation, those necessary to terminate or
assign Account Transfer Letters); provided, however, that any and all such
financing statements and other documents shall be prepared and/or recorded at
the Seller's expense.
5. Representations and Warranties. Each of the parties hereto
represents and warrants that it has the full corporate or other power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and that this Agreement has been duly and validly executed and
delivered by it (and assuming the due and valid execution and delivery hereof by
all other parties hereto) constitutes a legal, valid and binding obligation of
such party enforceable against it in accordance with its terms.
6. Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement may be executed in any number
of several counterparts, and each such counterpart shall constitute an original
and all such counterparts together shall constitute one and the same instrument.
The delivery of an executed counterpart hereof by facsimile shall constitute
delivery of an executed counterpart hereof.
[Signature Page Follows]
IN WITNESS, each of the parties hereto, by their respective duly authorized
signatories, has executed and delivered this Agreement as of the date first
above written.
AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION
____________________________________________
Name:
Title:
DELAWARE FUNDING CORPORATION
By: JPMORGAN CHASE BANK, as attorney-in-fact
for Delaware Funding Corporation
By:________________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By:________________________________________
Name:
Title:
SCHEDULE I
Reassigned Receivables
