SECOND AMENDMENT TO RECEIVABLES SALE AGREEMENT
Exhibit 10.2
EXECUTION COPY
SECOND AMENDMENT TO RECEIVABLES SALE AGREEMENT
THIS SECOND AMENDMENT TO RECEIVABLES SALE AGREEMENT, dated as of April 28, 2011 (this
“Amendment”) is entered into by and between AMERISOURCE RECEIVABLES FINANCIAL CORPORATION,
a Delaware corporation (in such capacity, the “Buyer”), and AMERISOURCEBERGEN DRUG
CORPORATION, a Delaware corporation (in such capacity, the “Originator”).
R E C I T A L S
A. The Buyer and the Originator have entered into that certain Receivables Sale Agreement,
dated as of July 10, 2003 (as amended, restated, supplemented or otherwise modified from time to
time, the “Agreement”).
B. The parties to the Agreement desire to enter into this Amendment to amend the
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms used but not defined herein shall have
the meanings set forth for such terms in Exhibit I to the Agreement.
2. Amendments to the Agreement. The Agreement is hereby amended as follows:
2.1 Section 2.1(r) of the Agreement is amended by deleting the second sentence in such
Section.
2.2 Section 2.1(s) of the Agreement is amended by deleting (a) the clause “or is
reasonably expected to occur” and (b) each instance of “$25,000,000” set forth therein and
substituting “$50,000,000” therefor.
2.3 Sections 4.1(q), 4.1(v)(ii), 4.1(v)(iii), 5.1(d),
5.1(g) and 5.1(h) of the Agreement are amended by deleting each reference to
“$25,000,000” set forth therein and substituting “$50,000,000” therefor.
2.4 The definitions of “Bellco Merger”, “BellCo Unit” and “Excluded
Receivable” are added to Exhibit I in alphabetical order:
“Bellco Merger” means the consummation of any consolidation or merger of Bellco Drug Corp., a
New York corporation, in one or more transactions, with or into an Originator.
“Bellco Unit” means the division or other business unit of AmerisourceBergen constituting the
business formerly operated as Bellco Drug Corp., a New York corporation.
“Excluded Receivable” means, from and after the Bellco Merger, all indebtedness and other
obligations owed to Originator (at the times it arises, and before giving effect to any transfer
or conveyance under the Agreement) or to Buyer (after giving effect to the transfers under the
Agreement) (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 the Bellco Unit.
2.5 The definition of “Receivable” set forth in Exhibit I is amended by
inserting “, other than any Excluded Receivable,” immediately after the clause “means all
indebtedness and other obligations”.
3. Representations and Warranties. Each of the Originator and the Buyer represents
and warrants that:
(a) Representations and Warranties. Each representation and warranty made by
it in the Agreement, as amended by this Amendment, and in the other Transaction Documents
are true and correct as of the date hereof (unless stated to relate solely to an earlier
date, in which case such representations and warranties were true as of such earlier date).
(b) Enforceability. The execution and delivery by it of this Amendment, and
the performance of its obligations under this Amendment and the Agreement (as amended
hereby) are within its corporate powers and have been duly authorized by all necessary
corporate action on its part. Each of this Amendment and the Agreement (as amended hereby)
is its valid and legally binding obligations, enforceable in accordance with its respective
terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(c) No Default. After giving effect to all transactions on the date hereof,
both immediately before and immediately after giving effect to this Amendment and the
transactions contemplated hereby, no Termination Event or Unmatured Termination Event exists
or shall exist.
4. Effect of Amendment. All provisions of the Agreement, as expressly amended and
modified by this Amendment, shall remain in full force and effect. After this Amendment becomes
effective, all references in the Agreement to “this Agreement”, “hereof”, “herein”, or words of
similar effect referring to the Agreement shall be deemed to be references to the Agreement, as
amended by this Amendment. This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Agreement (or any related document or agreement) other
than as set forth herein.
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5. Effectiveness. This Amendment shall become effective on the date hereof (the
“Effective Date”) subject to the condition precedent that each Purchaser Agent shall have
received, on or before the Effective Date, each of the following, each in form and substance
satisfactory to each Purchaser Agent:
(a) counterparts of this Amendment, duly executed by the parties hereto;
(b) counterparts of that certain First Amendment to the Amended and Restated Receivables
Purchase Agreement, dated as of the date hereof, duly executed by the parties thereto (including
evidence that each of the conditions to effectiveness set forth therein have been satisfied); and
(c) such other documents and instruments as a Purchaser Agent may reasonably request.
6. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts, and each counterpart shall be deemed to be an original,
and all such counterparts shall together constitute but one and the same instrument. Counterparts
of this Amendment may be delivered by facsimile transmission or other electronic transmission, and
such counterparts shall be as effective as if original counterparts had been physically delivered,
and thereafter shall be binding on the parties hereto and their respective successors and assigns.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
8. Section Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment or any other
Transaction Document or any provision hereof or thereof.
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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.
| AMERISOURCE RECEIVABLES FINANCIAL CORPORATION, as
Buyer |
||||
| By: | /s/ X.X. Xxxxx | |||
| Name: | X.X. Xxxxx | |||
| Title: | Vice President & Corporate Treasurer | |||
| AMERISOURCEBERGEN DRUG CORPORATION, as Originator |
||||
| By: | /s/ X.X. Xxxxx | |||
| Name: | X.X. Xxxxx | |||
| Title: | Vice President & Corporate Treasurer | |||
Second Amendment to Receivables Sale Agreement
(ARFC)
(ARFC)
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