EXHIBIT 4.28
NINTH AMENDMENT
TO
RECEIVABLES PURCHASE AGREEMENT
THIS NINTH AMENDMENT, dated as of October 1, 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. Amendment to the First Paragraph of the Receivables Purchase
Agreement. The first paragraph of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
RECEIVABLES PURCHASE AGREEMENT, dated as of May 14, 1999, 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 (successor by merger to Xxxxxx Guaranty Trust Company), 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 each of the Owners (as defined below).
SECTION 2. Amendments to Reflect Name Changes. Each reference in the
Receivables Purchase Agreement to "Xxxxxx Guaranty Trust Company of New York"
and "AmeriSource Health Corporation" is hereby replaced, respectively, with a
reference to "JPMorgan Chase Bank" and "AmerisourceBergen Services Corporation."
SECTION 3. Amendments to Sections 1.01 and 1.02 of the Receivables
Purchase Agreement.
(i) The defined terms "Chief Executive Office," "Contract," "Fee
Letter" and "Net Investment" appearing in Section 1.01 of the Receivables
Purchase Agreement are hereby deleted and replaced, respectively, with the
following:
"Chief Executive Office" shall mean, with respect to the Seller, any
Originator or the Servicer, the place where such Person in fact manages
the main part of its business operations.
"Contract" shall mean, with respect to any Receivable, the related
binding contract between the Applicable Originator and the Obligor,
including any and all instruments, agreements, invoices or other
writings which give rise to such Receivable.
"Fee Letter" shall mean, the agreement dated as of May 14, 1999, as
amended and restated as of October 27, 1999 and as further modified,
supplemented, amended or restated from time to time, setting forth fees
payable to the Owners and the Referral Agent by the Seller in
connection with the Owners' investment in the Seller's Receivables.
"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 reformed or restored for any reason.
(ii) The last sentence of the defined term "Receivable" appearing in
Section 1.01 of the Receivables Purchase Agreement is hereby deleted and
replaced with the following:
Notwithstanding the foregoing, once a Receivable has been deemed
collected or is repurchased pursuant to Section 2.08(c) or (d), Section
2.12(a) or Section 2.17(a) hereof and payment therefor received by the
Servicer or the Administrative Agent, as applicable, it shall no longer
constitute a Receivable hereunder.
(iii) Clause (a) of the defined term "Related Security" appearing in
Section 1.01 of the Receivables Purchase Agreement is hereby deleted and
replaced with the following:
(a) all rights and interests under all Contracts with respect
to such Receivable as such rights and interests relate to
such Receivable;
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(iv) The following new defined terms are hereby inserted in Section
1.01 of the Receivables Purchase Agreement in appropriate alphabetical order:
"Aggregate Receivables" shall mean all accounts (as defined in Section
9-102(a)(2) of the UCC) generated or acquired by AmeriSource from time
to time (including, without limitation, all Receivables) before giving
effect to any sale, contribution or other transfer thereof.
"AmeriSource" shall have the meaning specified in the first paragraph
of this Agreement.
"AmeriSource/BH2 Purchase Agreement" shall mean the Sale and
Contribution Agreement, dated as of December 20, 2000, between
AmeriSource, as originator and servicer and BH2, as buyer, as amended
by that certain First Amendment, dated as of October 1, 2002, and as
the same may from time to time be further modified, supplemented or
amended in accordance with the Intercreditor Agreement.
"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.).
"BH2" shall mean Blue Hill II, Inc., a Delaware corporation.
"BH2 Designated Distribution Center" shall mean any Distribution Center
of AmeriSource identified on Exhibit K hereto as a "BH2 Designated
Distribution Center".
"BH2 Designated Receivables" shall mean the Receivables that are
generated by AmeriSource at any BH2 Designed Distribution Center.
"BH2/GE Receivables Purchase Agreement" shall mean the Receivables
Purchase and Servicing Agreement, dated as of December 20, 2000, by and
among BH2, as seller, Redwood Receivables Corporation, as conduit
purchaser, AmeriSource, as servicer and General Electric Capital
Corporation, as committed purchaser and as administrative agent, as
amended by that certain First Amendment, dated as of August 29, 2001,
that certain Second Amendment, dated as of December 21, 2001, that
certain Third Amendment, dated as of October 1, 2002, and as the same
may from time to time be further modified, supplemented or amended in
accordance with the Intercreditor Agreement.
"Distribution Center" shall mean any ARFC Designated Distribution
Center and any BH2 Designated Distribution Center, as applicable.
"Intercreditor Agreement" shall mean the Intercreditor Agreement, dated
as of October 1, 2002, between JPMorgan Chase Bank, as Administrative
Agent under this Agreement and General Electric Capital Corporation, as
Administrative Agent under the BH2/GE Receivables Purchase Agreement,
as such Intercreditor Agreement may from time to time be
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modified, supplemented or amended.
(v) The last sentence of Section 1.02 of the Receivables Purchase
Agreement is hereby deleted.
SECTION 4. Addition of New Section 1.04 to the Receivables Purchase
Agreement.
1.04 UCC Definitions; UCC Section References. Terms not otherwise
defined herein which are defined in the UCC as in effect from time to
time in the State of New York shall have the respective meanings
ascribed to such terms therein unless (i) the context otherwise clearly
requires or (ii) such meaning would adversely affect the Administrative
Agent's interest in the Receivables, Related Security or Collections.
All references in this Agreement to specific sections of the UCC shall,
at all times (without further action), mean and be references to the
applicable sections of the most recently enacted UCC (including any and
all successor or replacement sections in the most recently enacted UCC,
regardless of section number, which correspond in substance to the UCC
sections referenced in this Agreement).
SECTION 5. Amendment to Section 2.13(b) of the Receivables Purchase
Agreement. Section 2.13(b) of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
(b) Any payment by an Obligor in respect of any Receivable
owed by it to the Seller shall, except as otherwise specified by such
Obligor or otherwise required by Contract or Law and unless otherwise
instructed by the Administrative Agent, be applied as a Collection of
such Receivable included in the Purchased Interest (starting with the
oldest such Receivable) to the extent of any amounts then due and
payable thereunder. In the event that the Seller or the Servicer, as
applicable, is unable to determine whether any such payment from an
Obligor is applicable to a Receivable or to a BH2 Designated
Receivable, the parties hereto agree for purposes of this Agreement,
the AmeriSource Purchase Agreement, the AmeriSource/BH2 Purchase
Agreement and the BH2/GE Receivables Purchase Agreement only that such
payment shall be deemed to be applicable to the Receivables and the BH2
Designated Receivables pro rata based on the outstanding balances of
the Receivables and the BH2 Designated Receivables in respect of such
Obligor net of all collections and discounts, and any other
modifications that reduce the outstanding balance thereof.
SECTION 6. Amendment to Section 4.05 of the Receivables Purchase
Agreement. The first sentence of Section 4.05 of the Receivables Purchase
Agreement is hereby deleted and replaced with the following:
The Servicer will furnish to the Administrative Agent such information
with respect to the Aggregate Receivables (including, but not limited
to, its procedures for selecting Receivables for sale, its procedures
for segregating Receivables from the Aggregate Receivables other than
the Receivables and its standards and procedures for selling goods or
services on credit) as the Administrative Agent may reasonably request.
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SECTION 7. Amendment to Section 4.09(b) of the Receivables Purchase
Agreement. The phrase "Complete Servicing Transfer under this Agreement"
appearing in Section 4.09(b)(vii) of the Receivables Purchase Agreement is
hereby deleted and replaced with the phrase "Complete Servicing Transfer under
this Agreement or a "Termination Event" or an "Event of Servicer Termination"
under (and as defined in) the BH2/GE Receivables Purchase Agreement."
SECTION 8. Amendment to Section 4.09(c) of the Receivables Purchase
Agreement. Subsection (c) of Section 4.09 of the Receivables Purchase Agreement
is hereby redesignated as subsection "(c)(i)" and the following new clause (ii)
is hereby inserted after the text of clause (i):
(ii) If the Servicer determines that amounts unrelated to the
Receivables (the "Unrelated Amounts") have been paid to the
Administrative Agent pursuant to this Agreement, then the Servicer
shall provide written evidence thereof to the Administrative Agent no
later than the first Business Day on which the Servicer had actual
knowledge thereof, which evidence shall be provided in writing and
shall be otherwise satisfactory to each Affected Party. Upon receipt of
such satisfactory evidence, the Administrative Agent shall segregate
the Unrelated Amounts, remit such amounts to the Seller, and the same
shall not be deemed to constitute Collections and shall otherwise not
be subject to the terms of this Agreement.
SECTION 9. Amendment to Section 4.12(b) of the Receivables Purchase
Agreement. The reference to "Rating Agencies" appearing in Section 4.12(b) of
the Receivables Purchase Agreement is hereby deleted and replaced with a
reference to "S&P and Xxxxx'x."
SECTION 10. Amendment to Section 5.01(f) of the Receivables Purchase
Agreement. Section 5.01(f) of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
(f) Location of Chief Executive Office, etc. (i) The Seller's Chief
Executive Office is located at the address for notices set forth on the
signature page hereof; (ii) the offices where the Seller keeps all of
its Records are listed on Exhibit H hereto; (iii) since its
incorporation, the Seller has operated only under the names identified
in Exhibit H hereto, and has not changed its name, merged or
consolidated with any other corporation or been the subject of any
proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code (Bankruptcy), except as
disclosed in Exhibit H hereto, (iv) the Seller is a "registered
organization" (as defined in Section 9-102(a)(70) of the UCC) organized
or incorporated in the State of Delaware and, for purposes of Article 9
of the UCC, the Seller is (and at all times has been) located in the
State of Delaware and (v) the Seller's taxpayer identification number
and state organizational identification number are set forth on Exhibit
H hereto.
SECTION 11. Addition of New Section 5.03(p) and (q) to the Receivables
Purchase Agreement. The following new subsections (p) and (q) are hereby
inserted immediately after Section 5.03(o) of the Receivables Purchase
Agreement:
(p) Distribution Centers; Etc. Exhibit K attached hereto identifies
each ARFC Designated Distribution Center and each BH2 Designated
Distribution Center. Exhibit J attached hereto identifies each bank and
other financial institution at which each
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Distribution Center maintains post office boxes and deposit accounts
for the receipt of collections for the portion of the Aggregate
Receivables generated by 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 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.
(q) Identification of Receivables After Repurchase Pursuant to
Section 2.17(a); Etc. Without limiting any other term of this
Agreement, in connection with (and after giving effect to) each
repurchase of Receivables pursuant to Section 2.17(a) hereof, the
Servicer is able to continue to perform all of its duties and
obligations hereunder and in connection herewith including, without
limitation, the generation of invoices relating to Receivables separate
and distinct from invoices relating to the Aggregate Receivables other
than the Receivables, the separate identification in its books, records
and systems of all Receivables, the segregation of all Collections in
respect of Receivables from all collections or other payments in
respect of the Aggregate Receivables other than the Receivables, the
timely and accurate application of Collections to Receivables and the
ability to generate timely and accurate reports with respect to the
foregoing.
SECTION 12. Amendment to Section 6.03(a) of the Receivables Purchase
Agreement. Section 6.03(a) of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
(a) Notice of Termination Event or Servicing Default; Etc. Promptly
upon becoming aware of any Termination Event, Potential Termination
Event, Servicing Default, "Termination Event" (as defined in the BH2/GE
Receivables Purchase Agreement) or "Event of Servicer Termination" (as
defined in the BH2/GE Receivables Purchase Agreement), the Servicer
shall give the Administrative Agent notice thereof, together with a
written statement of a Responsible Officer setting forth the details
thereof and (i) in the case of a Termination Event, Potential
Termination Event or Servicing Default, any action with respect thereto
taken or contemplated to be taken by the Servicer or (ii) in the case
of a "Termination Event" or "Event of Servicer Termination," any action
with respect thereto taken or, if known to the Servicer, contemplated
to be taken by any Person. The Servicer shall provide notice to the
Administrative Agent prior to the taking of any enforcement action by a
"Purchaser," the "Administrative Agent" or the "Collateral Agent"(each
such term as defined in the BH2/GE Receivables Purchase Agreement) with
respect to any Contract with an Obligor with respect to which a portion
of the Aggregate Receivables have been sold to both the Seller and BH2.
SECTION 13. Amendment to Section 6.03(f) of the Receivables Purchase
Agreement. Section 6.03(f) of the Receivables Purchase Agreement is hereby
deleted and replaced with the following:
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(f) Books and Records. The Servicer shall maintain and implement
administrative and operating procedures (including, without limitation,
the ability to recreate records evidencing the Aggregate Receivables
(including the Receivables) in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for the
collection of the Aggregate Receivables (including, without limitation,
records adequate to permit the identification of all Receivables (as
distinguished from Aggregate Receivables other than the Receivables),
Related Security and Collections and adjustments to each existing
Receivable).
SECTION 14. Amendment to Sections 4.03(c) and 6.03(q) of the
Receivables Purchase Agreement. The word "Records" appearing in the first
sentence of each of Section 4.03(c) and 6.03(q) of the Receivables Purchase
Agreement is hereby deleted and replaced with the word "records".
SECTION 15. Notice of Name Change and Change in Corporate Structure;
Authorization to File UCC Amendments. (i) Pursuant to Section 6.04(c) of the
Receivables Purchase Agreement, the Servicer hereby notifies the Administrative
Agent that effective on October 1, 2002, (x) the Servicer is changing its name
to "AmerisourceBergen Drug Corporation" and (y) Bergen Xxxxxxxx Company
(successor by merger to Xxxx Fillauer Medical, Inc.) is merging with and into
AmeriSource, with AmeriSource being the surviving corporation of such merger and
X.X. Xxxxx Healthcare, Inc. is merging with and into AmeriSource, with
AmeriSource being the surviving corporation of such merger (preceding clauses
(x) and (y), collectively, the "AmeriSource Corporate Changes") and (z) after
giving effect to the AmeriSource Corporate Changes, AmeriSource will continue to
be (as it has been at all times in the past) a Delaware corporation whose
federal taxpayer identification number will continue to be (as it has been at
all times in the past) 00-0000000.
(ii) The Administrative Agent hereby acknowledges receipt of the
notices contained in preceding clause (i) and hereby confirms that no further
notice shall be required pursuant to Section 6.04(c) of the Receivables Purchase
Agreement in connection with the AmeriSource Corporate Changes (unless any of
the information contained in preceding clause (i) changes) and, to the extent
necessary to prevent a breach of Section 6.04(c) of the Receivables Purchase
Agreement, the Administrative Agent hereby waives the 45-day notice requirement
in Section 6.04(c) of the Receivables Purchase Agreement to the extent (but only
to the extent) same relates to the AmeriSource Corporate Changes.
(iii) Without limiting the generality of any provision of the
Receivables Purchase Agreement, the Seller hereby authorizes the Administrative
Agent (at the Seller's expense) to file in connection with the AmeriSource
Corporate Changes such financing statements in such jurisdictions as the
Administrative Agent deems necessary or appropriate to protect or perfect (or
maintain the perfection of) the Owners' interest in the Receivables, Related
Security and Collections.
SECTION 16. Servicer Assumption, Consent and Ratification. By its
signature hereto, AmeriSource expressly (i) assumes all duties and obligations
of the Servicer under and in connection with the Receivables Purchase Agreement,
after giving effect to the AmeriSource Corporate Changes, (ii) acknowledges,
consents and agrees to all of the terms, conditions and provisions of this
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Amendment, the First Amendment, dated as of the date hereof, to the Affiliate
Purchase Agreement (the "First Amendment") and the Second Amendment dated as of
the date hereof to the AmeriSource Purchase Agreement (the "Second Amendment")
(copies of which have been provided to the Servicer and its counsel) and (iii)
ratifies and confirms that, after giving effect to this Amendment, the First
Amendment and the Second Amendment, (A) all of the Servicer's obligations under
or in connection with the Receivable Purchase Agreement remain in full force and
effect and (B) each reference in the Receivables Purchase Agreement to the
"Purchase Documents" shall mean and be a reference to the "Purchase Documents"
after giving effect to this Amendment, the First Amendment and the Second
Amendment.
SECTION 17. Guarantor Assumption, Consent and Ratification. (i) As of
October 1, 2002, (x) the Guarantor is changing its name to "AmerisourceBergen
Services Corporation," (y) Bergen Xxxxxxxx Corporation is merging with and into
AmerisourceBergen Services Corporation ("ABSC"), with ABSC being the surviving
corporation of such merger, and (z) AmeriSource is transferring certain
administrative functions to ABSC (preceding clauses (x), (y) and (z),
collectively, the "ABSC Corporate Changes").
(ii) By its signature hereto, ABSC expressly (x) assumes all duties
and obligations of the Guarantor under or in connection with the Receivables
Purchase Agreement (including, without limitation, Article IV-A and Section 6.05
thereof), after giving effect to the ABSC Corporate Changes, (y) acknowledges,
consents and agrees to all of the terms, conditions and provisions of this
Amendment, the First Amendment and the Second Amendment (copies of which have
been provided to the Guarantor and its counsel) and (z) ratifies and confirms
that, after giving effect to this Amendment, the First Amendment and the Second
Amendment, (A) all of the Guarantor's obligations under or in connection with
Article IV-A of the Receivable Purchase Agreement remain in full force and
effect and (B) each reference in the Receivables Purchase Agreement to the
"Purchase Documents" (including, without limitation, in the definition of
"Guaranteed Obligations") shall mean and be a reference to the "Purchase
Documents" after giving effect to this Amendment, the First Amendment and the
Second Amendment.
SECTION 18. 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, the First Amendment, the Second Amendment, the
AmeriSource Corporate Changes and the ABSC Corporate Changes), 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 (after giving effect
to this Amendment and the ABSC Corporate Changes) hereby represents and warrants
on the date hereof (after giving effect to this Amendment, the First Amendment,
the Second Amendment, the AmeriSource Corporate Changes and the ABSC Corporate
Changes) 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" (after giving effect to this Amendment and the ABSC Corporate
Changes), (iii) the Servicer (after giving effect to this Amendment and the
AmeriSource Corporate Changes) hereby represents and warrants on the date hereof
(after giving effect to this Amendment, the First Amendment, the Second
Amendment, the ABSC Corporate Changes and the
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AmeriSource Corporate Changes) 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, the First Amendment, the Second Amendment, the
AmeriSource Corporate Changes and the ABSC Corporate Changes) 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, the First Amendment, the
Second Amendment, the ABSC Corporate Changes and the AmeriSource Corporate
Changes), that no event has occurred and is continuing and no condition exists
which constitutes a Termination Event or Potential Termination Event.
SECTION 19. Amendments to Exhibits and Schedules.
(i) Exhibits H, I and J to the Receivables Purchase Agreement are
hereby deleted and replaced with Exhibits H, I and J attached hereto.
(ii) Exhibit K attached hereto is hereby inserted immediately after
Exhibit J attached to the Receivables Purchase Agreement.
(iii) Schedule 1 to the Receivables Purchase Agreement is hereby
amended by deleting X.X. Xxxxx Healthcare, Inc. therefrom.
SECTION 20. 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 21. 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
(including the acknowledgment and consent of JPMorgan Chase Bank, as Agent for
the APA Purchasers);
(b) (i) Originals of such financing statements (Form UCC-3), in form
and substance satisfactory to the Administrative Agent and otherwise in proper
form for filing, naming AmeriSource, as transferor (debtor), the Seller, as
transferee (secured party) and the Administrative Agent, as assignee, to be
filed with the State of Delaware;
(ii) Originals of such financing statements (Form UCC-3), in form and
substance satisfactory to the Administrative Agent and otherwise in proper form
for filing, naming the Seller,
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as transferor (debtor) and the Administrative Agent (for the benefit of the
Owners), as transferee (secured party), to be filed with the State of Delaware;
and
(iii) Originals of such financing statements (Form UCC-3), in form and
substance satisfactory to the Administrative Agent and otherwise in proper form
for filing, naming Xxxxx Xxxxxxxx Company, Inc., as transferor (debtor),
AmeriSource, as transferee (secured party) and the Administrative Agent, as
assignee, to be filed with the State of Delaware;
(c) Certified copies of requests for information (Form UCC-11) (or a
similar search report certified by parties acceptable to the Administrative
Agent) dated a date reasonably near the date hereof listing all effective
financing statements, tax liens and judgments which name, as debtor, (i)
AmeriSource or any entity to be merged on the date hereof with or into
AmeriSource (under their respective present names and any previous names) and
which are filed in (i) such Person's jurisdiction of incorporation or
organization or (ii) the jurisdiction in which such Person's chief executive
office is (or was during the last five years) located or (ii) ARFC and which are
filed in the Secretary of State of Delaware or the Commonwealth of Pennsylvania,
together in each case with copies of such financing statements, tax liens and
judgments;
(d) Copies of proper financing statements (Form UCC-3), if any,
necessary under the laws of all appropriate jurisdictions to release all
security interests and other rights of any Person in Receivables previously
granted by the Seller, AmeriSource, any Affiliate thereof or any other Person;
(e) The Certificate of Incorporation or organizational documents of
each of AmeriSource (after giving effect to the AmeriSource Corporate Changes)
and ABSC (after giving effect to the ABSC Corporate Changes), in each case,
certified as of a date reasonably near the date hereof by the Secretary of State
of Delaware;
(f) A long form good standing certificate for each of AmeriSource
(after giving effect to the AmeriSource Corporate Changes) and ABSC (after
giving effect to the ABSC Corporate Changes), in each case, issued by the
Secretary of State of Delaware, and a certificate of qualification issued, in
each case, by the Secretary of the Commonwealth of Pennsylvania, each such
certificate to be dated a date reasonably near the date hereof;
(g) A certificate of the secretary or assistant secretary of
AmeriSource dated the effective date hereof (after giving effect to the
AmeriSource Corporate Changes) and certifying (i) the names and signatures of
the officers authorized on behalf of AmeriSource to execute, and the officers
and other employees authorized to perform, the Purchase Documents (as amended)
and any other documents to be delivered by AmeriSource hereunder (on which
certificate the Administrative Agent and each Owner may conclusively rely until
such time as the Administrative Agent shall receive from AmeriSource a revised
certificate meeting the requirements of this clause (g)(i)), (ii) a copy of
AmeriSource's By-laws and (iii) resolutions of AmeriSource authorizing this
Amendment, the Second Amendment and the AmeriSource Corporate Changes;
(h) An officer's certificate of AmeriSource dated the effective date
hereof, executed by a Responsible Officer of AmeriSource (after giving effect to
the AmeriSource Corporate Changes), certifying that (i) the representations and
warranties contained in Sections 3.1 and 3.2 of the
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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, the First Amendment, the Second Amendment and the
AmeriSource Corporate Changes, (ii) no Servicing Default exists as of the date
hereof, both before and after giving effect to this Amendment, the First
Amendment, the Second Amendment, the AmeriSource Corporate Changes and the ABSC
Corporate Changes, 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 after giving
effect to the Second Amendment) 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) Blue Hill
II, Inc. 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 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;
(i) An officer's certificate of AmeriSource dated the effective date
hereof, executed by a Responsible Officer of AmeriSource (after giving effect to
the AmeriSource Corporate Changes) certifying, with respect to each entity
merged with and into AmeriSource on the date hereof, (i) the jurisdiction of
incorporation of each such merged entity (immediately before giving effect to
the AmeriSource Corporate Changes) during the last five years, (ii) the address
of the Chief Executive Office of each such merged entity (immediately before
giving effect to the AmeriSource Corporate Changes) during the last five years
and (iii) the taxpayer identification number and state organizational
identification number for each such merged entity (immediately before giving
effect to the AmeriSource Corporate Changes);
(j) A favorable opinion or opinions of counsel for AmeriSource
(after giving effect to the AmeriSource Corporate Changes), 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;
(k) 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;
(l) 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
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Documents (as amended), no conflicts with the Credit Agreement (or related
security documents) and such other matters as the Administrative Agent may
reasonably request;
(m) An executed copy of the First Amendment to the Affiliate
Purchase Agreement, which amendment shall have become effective in accordance
with the terms thereof;
(n) An executed copy of the Second Amendment to the AmeriSource
Purchase Agreement, which amendment shall have become effective in accordance
with the terms thereof;
(o) An executed copy of the Thirteenth Amendment and Consent, dated
as of the date hereof, with respect to the Asset Purchase Agreement;
(p) Executed copies of the First Amendment, dated as of the date
hereof, to the AmeriSource/BH2 Purchase Agreement (as defined in Section 3
hereof) and the Third Amendment, dated as of the date hereof, to the BH2/GE
Receivables Purchase Agreement (as defined in Section 3 hereof), 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,
together with copies of all financing statements (Form UCC-1) (including UCC-1
financing statements (if any) filed in lieu of continuation statements) and all
amendments (Form UCC-3) with respect thereto filed in connection with the
AmeriSource/BH2 Purchase Agreement and the BH2/GE Receivables Purchase
Agreement;
(q) An executed copy of the Intercreditor Agreement (as defined in
Section 3 hereof), which Intercreditor Agreement shall have become effective in
accordance with its terms; and
(r) Such other documents as the Buyer or the Administrative Agent
shall reasonably request.
SECTION 22. 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.
SECTION 23. 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:
ACKNOWLEDGED AND CONSENTED TO:
JPMORGAN CHASE BANK, as Agent
for the APA Purchasers
By _________________________
Name:
Title:
