EXHIBIT 4.1
EXECUTION COPY
THIRD AMENDMENT
TO
PURCHASE AGREEMENT
THIS THIRD AMENDMENT, dated as of December 2, 2002 (this "Amendment"),
to the Purchase Agreement dated as of May 14, 1999 (as in effect on the date
hereof, the "Purchase Agreement"), between AMERISOURCEBERGEN DRUG CORPORATION
(formerly known as AmeriSource Corporation), a Delaware corporation (the
"Seller") and AMERISOURCE RECEIVABLES FINANCIAL CORPORATION, a Delaware
corporation ("ARFC" or the "Buyer"), is by and between the parties listed above.
Unless otherwise defined in this Amendment, capitalized terms shall have the
meanings assigned to such terms in the Purchase Agreement (as amended hereby).
R E C I T A L S
WHEREAS, the Buyer and Seller have entered in the Purchase Agreement
pursuant to which the Buyer has purchased ARFC Designated Receivables and
related rights and interests from the Seller, which are Receivables generated at
ARFC Designated Distribution Centers;
WHEREAS, ARFC, the Servicer, the Guarantor, the Administrative Agent
and the "Buyer" thereunder have entered into the Receivables Purchase Agreement
pursuant to which ARFC has sold to the Administrative Agent (on behalf of the
Owners) undivided percentage ownership interests in the ARFC Designated
Receivables and related rights and interests purchased from the Seller pursuant
to the Purchase Agreement;
WHEREAS, AmerisourceBergen Drug Corporation ("ABDC"), as seller and
BH2, as buyer have entered into the AmeriSource/BH2 Purchase Agreement pursuant
to which BH2 has purchased BH2 Designated Receivables and related rights and
interests from ABDC, which are Receivables generated by ABDC at BH2 Designated
Distribution Centers;
WHEREAS, BH2, as seller, Redwood Receivables Corporation, as conduit
purchaser, ABDC, as servicer and General Electric Capital Corporation, as
committed purchaser and as administrative agent have entered into the BH2/GE
Receivables Purchase Agreement, pursuant to which BH2 has sold undivided
percentage ownership interests in the BH2 Designated Receivables and related
rights and interests to the Purchasers (as defined therein);
WHEREAS, the Seller has advised that from time to time it wishes to
consolidate certain of the ARFC Designated Distribution Centers into BH2
Designated Distribution Centers and certain of the BH2 Designated Distribution
Centers into ARFC Designated Distribution
Centers; and
WHEREAS, subject to the terms hereof, the Buyer and the Seller wish to
amend the Purchase Agreement to permit the consolidation of Distribution Centers
as contemplated in the immediately preceding WHEREAS clause;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
SECTION 1. Amendments to Section 1.1 of the Purchase Agreement.
(i) The defined terms "ARFC Designated Distribution Center," "ARFC
Designated Receivables," "BH2 Designated Distribution Center," "Facility
Documents," "Lockbox Account," "Permitted Lockbox" and "Transferred
Receivable(s)" are hereby deleted from Section 1.1 of the Purchase Agreement and
replaced, respectively, with the following:
"ARFC Designated Distribution Center" shall mean any Distribution
Center of the Seller identified on Exhibit H 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 H may be amended from time to time pursuant to
and in connection with a Distribution Center Consolidation.
"ARFC Designated Receivables" shall mean, collectively (but without
duplication) (i) all Receivables acquired by the Seller, as buyer,
under the Affiliate Purchase Agreement and (ii) all Receivables
generated by the Seller 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.
"BH2 Designated Distribution Center" shall mean any Distribution
Center of the Seller identified on Exhibit H hereto as a "BH2
Designated Distribution Center," as such Exhibit H may be amended from
time to time pursuant to and in connection with a Distribution Center
Consolidation.
"Facility Documents" shall mean, collectively, this Agreement, the
Affiliate Purchase Agreement, the Receivables Purchase Agreement, each
Reconveyance Agreement, and all other agreements, documents and
instruments delivered pursuant thereto or in connection therewith.
"Lockbox Account" shall mean a demand deposit account identified on
Exhibit B hereto maintained with a Permitted Lockbox Bank pursuant to
the Lockbox
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Servicing Instructions for the purpose of depositing payments made by
the Obligors, as such Exhibit B 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 the Receivables Purchase Agreement.
"Permitted Lockbox" shall mean a post office box or other mailing
location identified on Exhibit B 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 B 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 the Receivables Purchase Agreement.
"Transferred Receivable(s)" shall have the meaning specified in
Section 2.1 hereof; provided that once a Transferred Receivable has
been (i) deemed collected pursuant to Section 2.6 and payment therefor
made or (ii) repurchased in connection with a Distribution Center
Consolidation, it will no longer constitute a Transferred Receivable
hereunder.
(ii) The following new defined terms are hereby inserted in
Section 1.1 of the Purchase Agreement in appropriate alphabetical order:
"BH2 Designated Receivables" shall mean all Receivables generated by
the Seller 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.
"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 hereof.
"Reconveyance Agreement" shall mean a reconveyance agreement in
substantially the form of Exhibit I attached hereto.
SECTION 2. Addition of New Section 2.5A to the Purchase Agreement.
The following new Section 2.5A is hereby inserted immediately after Section 2.5
of the Purchase Agreement:
SECTION 2.5A Distribution Center Consolidations. From time to time,
the Seller may (but shall have no obligation to) consummate
Distribution Center Consolidations; provided, however, that if the
Seller proposes to consummate any
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Distribution Center Consolidation, the Seller shall provide the Buyer
and the Administrative Agent with at least 60 days (or, in the case of
the first such Distribution Center Consolidation only, at least one
day) prior 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, and such consolidation shall
be subject to satisfaction of the following conditions precedent:
(a) No Termination Event, Servicing Default, Potential Termination
Event or unmatured Servicing Default shall have occurred and be
continuing or will result after giving effect to such Distribution
Center Consolidation and no "Termination Event" or "Incipient
Termination Event" under and as defined in the BH2/GE Receivables
Purchase Agreement shall have occurred and be continuing or will
result after giving effect to such Distribution Center Consolidation;
(b) (i) All of the representations and warranties of the Buyer, the
Seller, the Servicer and the Guarantor, as applicable, contained in
this Agreement, the Receivables Purchase Agreement and the other
Purchase Documents shall be true and correct in all material respects
on and as of date of such Distribution Center Consolidation, both
before and after giving effect to such Distribution Center
Consolidation (other than representations and warranties which
expressly speak as of a different date, which shall be true and
correct in all material respects as of that date); and
(ii) The Guarantor shall have ratified and confirmed that all of
its obligations under or in connection with Article IV-A and
Section 6.05 of the Receivables Purchase Agreement remain in
full force and effect, both before and after giving effect to
such Distribution Center Consolidation;
(c) An amended and restated Exhibit H to reflect such Distribution
Center Consolidation shall have been prepared by the Seller and
delivered to the Buyer and the Administrative Agent;
(d) To the extent the Distribution Center Consolidation provides
for the consolidation of an ARFC Designated Distribution Center into a
BH2 Designated Distribution Center:
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(i) the Administrative Agent and the "Buyer" under the Receivables
Purchase Agreement shall have reconveyed the Purchased Interest in all
outstanding ARFC Designated Receivables generated at such ARFC
Designated Distribution Center in accordance with Section 2.17(a) of
the Receivables Purchase Agreement, the Administrative Agent, the
"Buyer" under the Receivables Purchase Agreement and the Buyer
hereunder shall have executed and delivered a Purchaser Interest
Reconveyance Agreement, and the Buyer hereunder shall have paid any
amounts due with respect thereto pursuant to Section 2.17(a) of the
Receivables Purchase Agreement;
(ii) the Buyer and the Administrative Agent shall have completed the
actions and made the deliveries required by Section 4.09A(i) of the
Receivables Purchase Agreement;
(iii) the Buyer and the Seller (with the consent of the Administrative
Agent) shall have executed and delivered a Reconveyance Agreement in
substance satisfactory to the Buyer and the Administrative Agent and
the Buyer shall have received the "Purchase Price" set forth therein;
and
(iv) the Administrative Agent shall have received an officer's
certificate signed by a Responsible Officer of the Buyer to the effect
that the Purchase Price equals the fair market value of the
"Reassigned Receivables" (as defined in the applicable Reconveyance
Agreement);
(e) To the extent such Distribution Center Consolidation provides for the
consolidation of a BH2 Designated Distribution Center into an ARFC
Designated Distribution Center:
(i) to the extent the Outstanding Balance of the Receivables
originated at such BH2 Designated Distribution Center are in excess of
the lesser of (A) $25,000,000 and (B) 10.0% of the Outstanding Balance
of Transferred Receivables, the "Buyer" under the Receivables Purchase
Agreement shall have received such written notice or confirmation as
it deems necessary or appropriate from each of Xxxxx'x and S&P to the
effect that such consolidation (or events related thereto) will not
result in a reduction or withdrawal of the rating of its Commercial
Paper and the Buyer hereunder and the Administrative Agent shall have
completed satisfactory due diligence with respect to the Receivables
originated at such BH2 Designated Distribution Center;
(ii) the Buyer and the Administrative Agent shall have received
evidence satisfactory to them of completion of the actions and
deliveries required by Section 4.09A(ii) of the Receivables Purchase
Agreement;
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(iii) the Buyer and the Administrative Agent shall have
received satisfactory documentation evidencing (A) the
reconveyance to BH2 of the Purchaser Interest (as defined
in the BH2/GE Receivables Purchase Agreement) in the
Receivables generated at such BH2 Designated Distribution
Center and the release of liens associated therewith, (B)
the reconveyance of the Receivables generated at such BH2
Designated Distribution Center to the Seller and the
release of liens associated therewith, and (C) that the
conditions precedent to such Distribution Center
Consolidation have been satisfied in accordance with the
BH2/GE Receivables Purchase Agreement and the
AmeriSource/BH2 Purchase Agreement;
(f) The Administrative Agent shall have received an officer's
certificate from each of the Buyer, the Seller, the Servicer
and the Guarantor, as applicable, in each case, dated the date
of such Distribution Center Consolidation, signed by a
Responsible Officer of such Person, certifying (i) as to the
applicable matters set forth in Section 2.5A(a), together with
a pro forma compliance certificate setting forth the
calculations (as applicable) substantiating such
certifications, (ii) among other things, as to the matters set
forth in Section 2.5A(b), (iii) as to the truth, accuracy and
completion of the matters set forth in Section 2.5A(d) or (e),
as applicable and, in the case of the Seller's officer
certificate, attaching an amended and restated Exhibit H to
reflect the Distribution Center Consolidation;
(g) On the date of such Distribution Center Consolidation,
the Buyer and the Administrative Agent shall have received a
current receivables aging report with respect to the
Receivables generated at the Distribution Center being
consolidated into a surviving Distribution Center, which
receivables aging report shall be in form and substance
satisfactory to the Buyer and the Administrative Agent (which
report the Administrative Agent shall provide to each of S&P
and Xxxxx'x, together with a copy of the notice delivered
pursuant to the first paragraph of this Section 2.5A);
(h) Without limiting Section 2.5A(d)(ii) or (e)(ii), not less
than 5 days prior to the date of such Distribution Center
Consolidation, the Buyer and the Administrative Agent shall
have received evidence (in form and substance satisfactory to
each of them) demonstrating that appropriate actions have been
taken and procedures established (all of which actions and
procedures must be satisfactory to the Buyer and the
Administrative Agent) to prevent (after giving effect to such
Distribution Center Consolidation) the commingling of
Collections in respect of Transferred Receivables with those
of any other Receivables in any Permitted Lockbox or Lockbox
Account; and
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(i) The Buyer and the Administrative Agent shall have received
such additional documentation as the Buyer or Administrative
Agent may reasonably request.
SECTION 3. Amendment to Section 3.2(g) of the Purchase
Agreement. Section 3.2(g) of the Purchase Agreement is hereby deleted and
replaced with the following:
Distribution Centers; Etc. Exhibit H attached hereto
identifies all ARFC Designated Distribution Centers and all
BH2 Designated Distribution Centers. Exhibit B attached hereto
also 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
Receivables generated at such Distribution Center and
identifies the related post office box address and the related
account numbers. The Seller represents that the Seller does
not generate or otherwise create or maintain any Receivables
that are neither ARFC Designated Receivables nor BH2
Designated Receivable. The Seller further represents and
warrants that Exhibit H hereto includes as ARFC Designated
Distribution Centers all distribution centers 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.).
SECTION 4. Representations and Warranties; Etc. In order to
induce the Buyer to execute and deliver this Amendment, the Seller hereby
represents and warrants on the date hereof (after giving effect to this
Amendment and the Tenth Amendment to the Receivables Purchase Agreement), that
each of the representations and warranties set forth in Section 3.1 of the
Purchase Agreement is true and correct; provided that, references in Section 3.1
of the Purchase Agreement to "this Agreement" or the "Facility Documents" shall
mean and be a reference to, or shall include, the Purchase Agreement (after
giving effect to this Amendment and the Tenth Amendment to the Receivables
Purchase Agreement).
SECTION 5. Amendments to Exhibits. Exhibit I attached hereto
is hereby inserted immediately after Exhibit H attached to the Purchase
Agreement.
SECTION 6. Purchase Agreement in Full Force and Effect, as
Amended. Except as specifically stated herein, all of the terms and conditions
of the Purchase Agreement shall remain in full force and effect. All references
to the Purchase Agreement in any Facility Document or any other document or
instrument shall be deemed to mean the Purchase Agreement, as amended by this
Amendment. This Amendment shall not constitute a novation of the Purchase
Agreement, but shall constitute an amendment thereto. The parties hereto agree
to be bound by the terms and obligations of the Purchase Agreement, as amended
by this Amendment, as though the terms and obligations of the Purchase Agreement
were set forth herein.
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SECTION 7. Effectiveness. This Amendment shall become
effective in accordance with its terms upon receipt by the Buyer and the
Administrative Agent of each of the following:
(a) an executed counterpart of this Amendment from each party
hereto (including the consent of the Administrative Agent and General Electric
Capital Corporation, as the administrative agent under the BH2/GE Receivables
Purchase Agreement); and
(b) a fully executed Tenth Amendment to the Receivables
Purchase Agreement, dated as of the date hereof, which amendment shall have
become effective in accordance with its terms.
[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.
AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION,
as Buyer
By ______________________________
Name:
Title:
AMERISOURCEBERGEN DRUG
CORPORATION, as Seller
By ______________________________
Name:
Title:
CONSENTED TO AS OF THE DATE
FIRST ABOVE SET FORTH:
JPMORGAN CHASE BANK,
as Administrative Agent
By ______________________________
Name:
Title:
WITH THE CONSENT OF:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent under the BH2/GE
Receivables Purchase Agreement
By ______________________________
Name:
Title:
[Signature Page to the Third Amendment to the AmeriSource Purchase Agreement]
EXHIBIT I
to
Purchase Agreement
FORM OF
RECONVEYANCE AGREEMENT
THIS RECONVEYANCE AGREEMENT (this "Agreement") is made and entered
into as of [INSERT DATE], between AMERISOURCE RECEIVABLES FINANCIAL CORPORATION,
a Delaware corporation (the "Buyer") and AMERISOURCEBERGEN DRUG CORPORATION
(f/k/a AmeriSource Corporation), a Delaware corporation (the "Seller"). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Purchase Agreement (as defined below).
Statement of Facts
Pursuant to that certain Purchase Agreement, dated as of May 14,
1999, between the Buyer and the Seller (as amended, restated supplemented or
otherwise modified from time to time, the "Purchase Agreement"), the Buyer has
purchased from time to time from the Seller certain trade receivables (and
related rights thereto) generated at ARFC Designated Distribution Centers.
The Seller has given notice to the Buyer of the Seller's intent to
consolidate the Consolidating Location (defined below) into a BH2 Designated
Distribution Center in accordance with Section 2.5A of the Purchase Agreement
and, in connection therewith, to repurchase from the Buyer all outstanding ARFC
Designated Receivables with respect to the Consolidating Location (as set forth
in Schedule II hereto or in such other format as is acceptable to the Buyer, the
"Reassigned Receivables") and have the Buyer release its security interests
therein.
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, the Seller 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 H to the 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." [As of the date hereof, the
Outstanding Balance of the Reassigned Receivables is $[_________].]
2. Reconveyance by Buyer.
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 hereby sells, assigns, transfers, and conveys to the Seller without
recourse, and the Seller hereby accepts, purchases and receives, all of the
Buyer's rights, titles and interests in and to the Reassigned Receivables. In
consideration of the Buyer's transfer and conveyance hereunder to the Seller of
the Reassigned Receivables, the Seller shall pay a purchase price $[________]
(the "Purchase Price"), to be paid as set forth on Schedule I hereto either in
cash and/or in the form of a reduction of the Subordinated Note owing by the
Buyer to the Seller, if any, which Purchase Price represents the fair market
value of the Reassigned Receivables as of the date hereof.
b. Subject to the terms and conditions of this Agreement, the Buyer hereby
releases and terminates all security interests or other rights or interests that
the Buyer may have in (i) the Reassigned Receivables, (ii) the Seller'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 become effective
as of the date hereof when signed by the Buyer and the Seller and consented to
by the Administrative Agent.
4. Further Assurances. The Buyer hereby agrees to execute and deliver such
UCC 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.
AMERISOURCEBERGEN DRUG CORPORATION,
as Seller
------------------------------------
Name:
Title:
AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION
as Buyer
------------------------------------
Name:
Title:
CONSENTED TO AS OF THE
DATE FIRST ABOVE SET FORTH:
JPMORGAN CHASE BANK,
as Administrative Agent
By:
----------------------------
Name:
Title:
SCHEDULE I
Purchase Price
--------------------------------------------------------------------------------
Outstanding Fair Market Fair Market Reduction to Cash
----------- ----------- ----------- ------------ -----
Balance of Value/Purchase Value Subordinated
---------- -------------- ----- ------------
Reassigned Price in $ (as a Note
---------- ---------- ----- ----
Receivables percentage)
----------- -----------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE II
Reassigned Receivables
