UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 28, 2011
AmerisourceBergen Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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1-16671
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23-3079390
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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1300 Morris Drive
Chesterbrook, PA
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19087
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(610) 727-7000
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
On April 28, 2011, AmerisourceBergen Corporation (the Registrant) renewed its $700 million
accounts receivables securitization facility for an additional term of three years. The facility
termination date of the securitization facility is now scheduled for April 28, 2014.
The securitization facility is available to provide additional liquidity and funding for the
ongoing business needs of the Registrant and its subsidiaries. The securitization facility is
based on the accounts receivables originated by AmerisourceBergen Drug Corporation (ABDC) for the
sale of pharmaceuticals and other related services. Pursuant to the securitization facility, ABDC
sells its accounts receivables to Amerisource Receivables Financial Corporation (ARFC). ARFC may
sell interests in the accounts receivables purchased from ABDC to the various purchaser groups
party to the securitization facility, paying interest on amounts outstanding under the facility.
Bank of America, National Association, serves as the administrator of the securitization facility.
The securitization facility has a base limit of $700 million, with an option to increase the
commitments of the participating banks, subject to their approval, by an additional $250 million
for seasonal needs during the December and March quarters. The Registrant serves as the
performance guarantor of ABDCs obligations as originator and servicer under the securitization
facility.
In connection with the renewal, the Registrant or subsidiaries of the Registrant entered into
(i) the First Amendment to Amended and Restated Receivables Purchase Agreement, dated as of April
28, 2011 (the First Amendment to RPA), among ARFC, as seller, ABDC, as initial servicer, various
purchaser groups, and Bank of America, National Association, as administrator; (ii) the Second
Amendment to Receivables Sale Agreement, dated as of April 28, 2011 (the Second Amendment to
RSA), between ARFC, as buyer, and ABDC, as originator; and (iii) the First Amendment to Amended
and Restated Performance Undertaking, dated as of April 28, 2011 (the First Amendment to
Performance Undertaking).
Copies of each of the First Amendment to RPA, Second Amendment to RSA and First Amendment to
Performance Undertaking are filed as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, to
this report and are incorporated herein by reference.
Item 2.03. Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
The information set forth in Item 1.01 above is hereby incorporated by reference under this
Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
10.1 First Amendment to Amended and Restated Receivables Purchase Agreement, dated as of April
28, 2011, among Amerisource Receivables Financial Corporation, as Seller, AmerisourceBergen Drug
Corporation, as initial Servicer, various purchaser groups, and Bank of America, National
Association, as Administrator.
10.2 Second Amendment to Receivables Sales Agreement, dated as of April 28, 2011, between
Amerisource Receivables Financial Corporation, as Buyer, and AmerisourceBergen Drug Corporation, as
Originator.
10.3 First Amendment to Amended and Restated Performance Undertaking Agreement, dated as of
April 28, 2011, among Registrant, Amerisource Receivables Financial Corporation, Bank of America,
National Association, as Administrator, and various purchaser groups.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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AMERISOURCEBERGEN CORPORATION
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Date: May 4, 2011
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By:
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/s/ Michael D. DiCandilo
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Name:
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Michael D. DiCandilo
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Title:
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Executive Vice President
and Chief Financial Officer
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Exhibit 10.1
EXECUTION COPY
FIRST AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of April
28, 2011 (this
Amendment
) is entered into among AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION, a Delaware corporation (in such capacity, the
Seller
), AMERISOURCEBERGEN
DRUG CORPORATION, a Delaware corporation, as the initial Servicer (in such capacity, the
Servicer
), the PURCHASER AGENTS and PURCHASERS listed on the signature pages hereto, and
BANK OF AMERICA, NATIONAL ASSOCIATION (
Bank of America
), a national banking association,
as administrator (in such capacity, the
Administrator
).
R E C I T A L S
The Seller, Servicer, the Purchaser Groups, and the Administrator are parties to that certain
Amended and Restated Receivables Purchase Agreement, dated as of April 29, 2010 (as amended,
supplemented or otherwise modified from time to time, the
Agreement
or the
Receivables Purchase 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
. As of the Effective Date (as defined below), the
Receivables Purchase Agreement is amended as follows:
(a)
Section 2.1(f)
of the Receivables Purchase Agreement is amended and restated as
follows:
(f) all Broken Funding Costs and all amounts due and owing under
Article
X
, including, Indemnified Amounts, in each case, upon demand.
(b)
Section 5.1(s)
is amended by deleting the second sentence of such Section.
(c)
Section 5.3(n)
of the Receivables Purchase Agreement is amended by deleting the
clause or is reasonably expected to occur therefrom.
(d)
Section 7.3(n)
of the Receivables Purchase Agreement is amended by deleting (i)
the clause or likely occurrence of therefrom and (ii) the $25,000,000 therefrom and
substituting $50,000,000 therefor.
(e)
Sections 7.3(r)(i)
and
(iii)
of the Receivables Purchase Agreement are
amended by deleting the $25,000,000 therefrom and substituting $50,000,000 therefor.
(f)
Section 9.1(e)
of the Receivables Purchase Agreement is hereby amended by deleting
the following clause therefrom:
(other than any covenant, agreement or duty applicable to it set forth in
Section 10.4 (a) or (b)
)
(g)
Section 9.1(f)
of the Receivables Purchase Agreement is amended by deleting each
reference to $25,000,000 therein and substituting $50,000,000 therefor.
(h)
Section 9.1(o)
of the Receivables Purchase Agreement is amended by (i) deleting
the reference to Section 6.12 therefrom and substituting Section 6.11 therefor and (ii)
deleting April 30, 2009 therefrom and substituting March 18, 2011 therefor.
(i)
Section 9.1(y)
of the Receivables Purchase Agreement is amended by deleting the
$25,000,000 therefrom and substituting $50,000,000 therefor.
(j)
Section 10.4
of the Receivables Purchase Agreement is deleted in its entirety.
(k) The following provisions are added to the Receivables Purchase Agreement as
Sections
13.15
and
13.16
, respectively:
Section 13.15
Federal Reserve
. Notwithstanding any other provision
of this Agreement to the contrary, any Purchaser Group may at any time pledge or
grant a security interest in all or any portion of its rights (including, without
limitation, any rights to payment of capital and interest) under this Agreement and
any other Transaction Document to secure obligations of such Purchaser Group to a
Federal Reserve Bank, without notice to or consent of the Seller or the
Administrator or any other party; provided that no such pledge or grant of a
security interest shall release a Purchaser Group from any of its obligations
hereunder, or substitute any such pledgee or grantee for such Purchaser Group as a
party hereto.
Section 13.16
Patriot Act
. To the extent applicable, each Originator,
the Seller and the Servicer are in compliance, in all material respects, with the
(a) Trading with the Enemy Act, as amended, and each of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto,
and (b) Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the
Patriot
Act
). No part of the proceeds of the Purchases made hereunder will be used by
any Originator, the Seller, the Servicer, or any of their Affiliates, directly or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else
acting in a official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended.
First Amendment to RPA
(ARFC)
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(l)
Exhibit I
of the Receivables Purchase Agreement is hereby amended as follows:
(i) The following definitions of
Bellco Merger
and
Bellco Unit
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.
(ii) The definition of
Credit Agreement
is hereby amended and restated as
follows:
Credit Agreement
shall mean the Credit Agreement dated as of March 18, 2011,
among AmerisourceBergen, the borrowing subsidiaries from time to time party thereto,
the lenders named therein, JPMorgan Chase Bank, N.A., as administrative agent, as in
effect on March 18, 2011 (without giving effect to any amendment, waiver,
termination, supplement or other modification thereof thereafter unless consented to
by the Required Purchaser Agents).
(iii) The definitions of
DOD Receivable
,
Exiting Purchaser Group
,
Exiting Purchaser Group Payoff Amount
,
External Rating
,
Minimum
Required Rating
and
Ratings Cure
are deleted from
Exhibit I
in their
entirety.
(iv) The definition of
Eligible Receivable
is amended by inserting and at
the end of clause (u), deleting ; and at the end of clause (v) and substituting .
therefor and deleting clause (w) in its entirety.
(v) The following definition of
Excluded Receivable
is added to
Exhibit
I
in alphabetical order:
Excluded Receivable
means, from and after the Bellco Merger, any indebtedness
and other obligations owed to Seller or any Originator (at the time it arises, and
before giving effect to any transfer or conveyance under the Receivables Sale
Agreement) or in which Seller or an Originator has a security interest or other
interest, 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.
(vi) The definition of
Facility Termination Date
is amended and restated as
follows:
Facility Termination Date
means, for any Group Commitment (or portion
thereof), the earliest to occur of: (a) the Scheduled Facility Termination
Date for such Group Commitment (or portion thereof), (b) the date determined
pursuant to
Section 1.1(d)(ii)
, (c) the date determined pursuant to
Section 9.2
, (d) the Amortization Date and (e) the date the Purchase Limit
reduces to zero pursuant to
Section 1.1(c)
of this Agreement.
First Amendment to RPA
(ARFC)
3
(vii) The definition of
Net Pool Balance
is amended and restated as follows:
Net Pool Balance
means, at any time, the aggregate Outstanding Balance of all
Eligible Receivables at such time reduced by (i) the aggregate amount by which the
Outstanding Balance of all Eligible Receivables of each Obligor and its Affiliates
exceeds the Obligor Concentration Limit for such Obligor, (ii) the Rebate Reserve,
(iii) the Government Receivable Excess and (iv) sales tax, excise tax or other
similar tax or charge, arising with respect to such Eligible Receivables in
connection with their creation and satisfaction
.
(viii) The definition of
Obligor Concentration Limit
is hereby amended by (i)
inserting Eligible immediately prior the first instance of Receivable, (ii) deleting the
first instance of shall be immediately prior to determined and (iii) deleting , the
applicable concentration limit shall be determined according to the following table
therefrom.
(ix) The definition of
Receivable
is amended by inserting , other than any
Excluded Receivable, immediately after the clause means all indebtedness and other
obligations.
(x) The definition of
Regulatory Change
is hereby amended and restated as
follows:
Regulatory Change
means, after the date of this Agreement (i) adoption of any
United States (federal, state or municipal) or foreign laws, regulations (including
any applicable law, rule or regulation regarding capital adequacy) or accounting
principles, (ii) the adoption or making of any interpretations, guidance, directives
or requests of or under any United States (federal, state or municipal) or foreign
laws, regulations (whether or not having the force of law) or accounting principles
by any court, governmental or monetary authority, or accounting board or authority
(whether or not part of government) charged with the establishment, interpretation
or administration thereof or (iii) the compliance, implementation or application by
the Funding Source, Indemnified Party or other Purchaser of any of the foregoing
subclauses (i) or (ii). For the avoidance of doubt and notwithstanding anything to
the contrary contained herein, any interpretation of, or compliance, implementation
or application by, whether commenced prior to or after the date hereof, any Funding
Source, Indemnified Party or other Purchaser with any of the following existing
laws, including any rules, regulations, guidance, directives or requests issued in
connection therewith (whether or not having the force of law), shall constitute a
Regulatory Change: (a) FAS 140 or FIN 46R by the Financial Accounting Standards
Board, Statements of Financial Accounting Standards Nos. 166 and 167; (b) the final
rule titled
Risk-
Based Capital Guidelines: Capital Adequacy Guidelines; Capital Maintenance;
Regulatory Capital; Impact of Modifications to Generally Accepted Accounting
Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other
Related Issues
, adopted by the United States bank regulatory agencies on December
15, 2009 (c) the Dodd-Frank Wall Street Reform and Consumer Protection Act adopted
by Congress on July 21, 2010 and (d) the revised Basel Accord prepared by the Basel
Committee on Banking Supervision as set out in the publication entitled
International Convergence of Capital Measurements and Capital Standards: a Revised
Framework, as updated from time to time.
First Amendment to RPA
(ARFC)
4
(xi) The definition of
Scheduled Facility Termination Date
for any Group
Commitment (or portion thereof) is amended and restated as follows:
Scheduled Facility Termination Date
means, for any Group Commitment (or
portion thereof), the Scheduled Facility Termination Date set forth therefor on
the signature page to the First Amendment to the Amended and Restated Receivables
Purchase Agreement, dated as of April 28, 2011 (or in the applicable Assumption
Agreement or Transfer Supplement).
(m)
Exhibit VI
of the Receivables Purchase Agreement is amended and restated as set
forth on
Exhibit VI
attached hereto.
3.
Representations and Warranties; Covenants
. Each of the Seller and the Servicer (on
behalf of the Seller) hereby certifies, represents and warrants to the Administrator, each
Purchaser Agent and each Purchaser that on and as of the date hereof:
(i) each of its representations and warranties contained in
Article V
of the
Agreement is true and correct, in all material respects, as if made on and as of the
Effective Date;
(ii) no event has occurred and is continuing, or would result from this Amendment or
any of the transactions contemplated herein, that constitutes an Amortization Event or
Unmatured Amortization Event;
(iii) the Facility Termination Date for all Purchaser Groups has not occurred; and
(iv) the Credit Agreement has not been amended.
4.
Effect of Amendment
. Except as expressly amended and modified by this Amendment,
all provisions of the Agreement shall remain in full force and effect. After this Amendment
becomes effective, all references in each of the Agreements to this Agreement, hereof,
herein, or words of similar effect referring to such 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.
First Amendment to RPA
(ARFC)
5
5.
Consent to Receivables Sale Agreement Amendment
. Each of the parties hereto
consent to the execution and delivery of the Second Amendment to the Receivables Sale Agreement,
dated as of the date hereof and substantially in the form of
Exhibit A
attached hereto.
6.
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 the Purchaser Agents:
(a) counterparts of (i) this Amendment, (ii) the amended and restated Fee Letter by and among,
inter alia
, the Seller and each Purchaser Agent and dated as of the date hereof, and (iii) the
Second Amendment to the Receivables Sale Agreement dated as of the date hereof, in each case duly
executed by each of the parties thereto;
(b) the Administrator, each Purchaser Agent and PNC Capital Markets LLC shall have received
all accrued and unpaid fees, costs and expenses to the extent then due and payable to it or the
Purchasers on the Effective Date; and
(c) such other documents and instruments as a Purchaser Agent may reasonably request.
7.
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.
8.
Governing Law
. This Amendment shall be governed by, and construed in accordance
with the law 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).
9.
Section Headings
. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment, the
Agreement or any other Transaction Document or any provision hereof or thereof.
[signature pages begin on next page]
First Amendment to RPA
(ARFC)
6
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.
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AMERISOURCE RECEIVABLES FINANCIAL
CORPORATION, as Seller
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By:
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/s/ J.F. Quinn
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Name:
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J.F. Quinn
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Title:
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Vice President & Corporate Treasurer
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AMERISOURCEBERGEN DRUG
CORPORATION, as initial Servicer
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By:
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/s/ J.F. Quinn
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Name:
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J.F. Quinn
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Title:
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Vice President & Corporate Treasurer
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Acknowledged and Agreed
AMERISOURCEBERGEN CORPORATION
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By:
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/s/ J.F. Quinn
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Name:
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J.F. Quinn
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Title:
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Vice President & Corporate Treasurer
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First Amendment to RPA
(ARFC)
S-1
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BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrator
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By:
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/s/ Nina Austin
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Name:
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Nina Austin
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Title:
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Vice President
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BANK OF AMERICA, NATIONAL ASSOCIATION, as Purchaser
Agent, Uncommitted Purchaser and Related Committed
Purchaser for Bank of America, National Association
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By:
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/s/ Nina Austin
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Name:
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Nina Austin
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Title:
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Vice President
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Scheduled Facility Termination Date: April 28, 2014
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First Amendment to RPA
(ARFC)
S-2
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Purchaser
Agent, Uncommitted Purchaser and Related Committed
Purchaser for Wells Fargo Bank, National Association
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By:
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/s/ Elizabeth R. Wagner
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Name:
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Elizabeth R. Wagner
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Title:
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Vice President
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Scheduled Facility Termination Date: April 28, 2014
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First Amendment to RPA
(ARFC)
S-3
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LIBERTY STREET FUNDING LLC, as an Uncommitted
Purchaser
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By:
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/s/ Jill A. Russo
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Name:
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Jill A. Russo
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Title:
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Vice President
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THE BANK OF NOVA SCOTIA, as Purchaser Agent and
Related Committed Purchaser for Liberty Street
Funding LLC
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By:
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/s/ J Frazell
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Name:
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John Frazell
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Title:
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Director
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Scheduled Facility Termination Date: April 28, 2014
First Amendment to RPA
(ARFC)
S-4
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MARKET STREET FUNDING LLC, as an Uncommitted
Purchaser
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By:
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/s/ Doris J. Hearn
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Name:
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Doris J. Hearn
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Title:
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Vice President
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PNC BANK, NATIONAL ASSOCIATION, as Purchaser Agent
and Related Committed Purchaser for Market Street
Funding LLC
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By:
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/s/ William P. Falcon
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Name:
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William P. Falcon
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Title:
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Vice President
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Scheduled Facility Termination Date: April 28, 2014
First Amendment to RPA
(ARFC)
S-5
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VICTORY RECEIVABLES CORPORATION, as an Uncommitted
Purchaser
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By:
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/s/ Frank B. Bilotta
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Name:
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Frank B. Bilotta
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Title:
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President
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as Purchaser Agent for Victory Receivables
Corporation
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By:
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/s/ Aditya Reddy
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Name:
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Aditya Reddy
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Title:
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Managing Director
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH, as Related Committed Purchaser for Victory
Receivables Corporation
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By:
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/s/ Brian McNany
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Name:
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B. McNany
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Title:
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Associate
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Scheduled Facility Termination Date: April 28, 2014
First Amendment to RPA
(ARFC)
S-6
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WORKING CAPITAL MANAGEMENT CO., LP, as Uncommitted
Purchaser and as Related Committed Purchaser for
Working Capital Management Co., LP
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By:
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/s/ S. Nochiide
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Name:
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Shinichi Nochiide
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Title:
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Attorney-in-Fact
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Scheduled Facility Termination Date: April 28, 2014
MIZUHO CORPORATE BANK, LTD., as Purchaser Agent for
Working Capital Management Co., LP
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By:
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/s/ Bertram H. Tang
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Name:
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Bertram Tang
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Title:
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Authorized Signatory
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First Amendment to RPA
(ARFC)
S-7
EXHIBIT A
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.
2
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.
[signature pages on next page]
3
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.
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AMERISOURCE RECEIVABLES FINANCIAL CORPORATION, as
Buyer
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By:
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Name:
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J.F. Quinn
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Title:
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Vice President & Corporate Treasurer
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AMERISOURCEBERGEN DRUG CORPORATION, as Originator
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By:
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Name:
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J.F. Quinn
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Title:
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Vice President & Corporate Treasurer
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First Amendment to RPA
(ARFC)
A-1
Exhibit VI
Amerisource Receivables Financial Corporation
For the Month Ended:
(Page 1)
($)
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I. Portfolio Information
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1. Beginning of Month Balance: (Total A/R Outstanding)
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2. Gross Sales (Domestic & Foreign):
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3. Deduct:
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a. Total Collections:
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b. Dilution
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c. Net Write Offs
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Add: d. Misc. Non-Dilutive Adj.
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e. Notes Receivable
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4.
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a. Calculated Ending A/R Balance [(1) + (2) (3 a,b,c)+(3d,e)]:
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b. Reported Ending A/R Balance
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c. Difference (If any)
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5. Deduct:
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a. Intercompany/affiliate Receivables
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b. Delinquent Receivables
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c. Defaulted Receivables
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d. Bankrupt Customers < 60DPD
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e. Foreign Receivables < 60 DPD
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f. Contra Relationships
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g. Cross Age Test 35% > 60 DPD
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h. Excess Receivables with terms 31-60 Days
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i. Excess Receivables with terms 61-90 Days
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j. Notes Receivables
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k. Unapplied Cash (if not excluded from
aging)
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l. Servicing Fee Reserve
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m. Other Ineligibles
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N. Total Ineligibles
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6. Eligible Receivables [(4 b) (5.n)]:
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7. Deduct: Excess Concentration
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8. Deduct: Rebate Reserve
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9. Deduct: Government Receivable Excess
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10. Deduct: Taxes
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11. Net Pool Balance [(6) -(7) -(8) -(9) -(10)]:
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Aging
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Current
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One Month
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Two Month
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Three Month
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12.
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Schedule:
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Month
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%
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Prior
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Prior
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Prior
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a.
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Current
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b.
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1-30 Days past Due
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c.
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31-60 Days past Due
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d.
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61-90 Days past Due
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e.
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91-120 Days past Due
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f.
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121-150 Days past Due
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g.
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151+ Days Past Due
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Total:
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Amerisource Receivables Financial Corporation
For the Month Ended:
(Page 2)
($)
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II. Calculations Reflecting Current Activity
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13. Amount Outstanding
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14. Required Reserve (Sum of (a), (b), and (c))
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a. Maximum of:
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(i) Required Reserve Factor Floor
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(ii) Sum of the Loss Reserve and the Dilution Reserve
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1. Loss Reserve
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2. Dilution Reserve
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b. Servicing Reserve
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c. Yield Reserve
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15. Required Reserve [(10) x (13)]:
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16. Maximum Funding Availability
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17. Funding Availability based on Facility Limit
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18. Additional Availability or (Required Paydown)
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III. Compliance
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19. (CP Outstanding + RR) / NPB [(14) + (12) / (10)] < 100% :
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In Compliance
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20. 3M Avg. Delinquency Ratio
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2.25
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%
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In Compliance
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a. 1 M Delinquency Ratio (Current Month)
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b. 1M Delinquency Ratio (1-month Prior)
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c. 1 M Delinquency Ratio (2-months Prior)
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21. 3M Avg. Default Ratio
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0.50
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%
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In Compliance
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a. 1 M Delinquency Ratio (Current Month)
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b. 1M Delinquency Ratio (1-month Prior)
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c. 1 M Delinquency Ratio (2-months Prior)
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22. 3M Avg. Dilution Ratio
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4.25
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%
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In Compliance
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a. 1 M Dilution Ratio (Current Month)
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b. 1M Dilution Ratio (1-month Prior)
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c. 1 M Dilution Ratio (2-months Prior)
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23. 1 M DSO Ratio
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25
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In Compliance
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24. Facility Limit
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$
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700,000,000
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In Compliance
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IV. Bank Covenant Compliance
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Minimum or
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Min or Max
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|
|
|
Maximum Covenant
|
|
|
Covenant Level
|
|
|
|
|
|
|
|
Level
|
|
|
Achieved
|
|
|
|
|
|
|
|
|
3.00 to 1.00
|
|
|
Yes
|
|
In Compliance
|
25. Leverage Ratio
|
|
|
|
|
|
|
|
|
|
|
|
|
Amerisource Receivables Financial Corporation
For the Month Ended:
(Page 3)
($)
V. Excess Concentration: (Calculation)
Eligible Receivables
|
|
|
|
|
|
|
|
|
Allowable Percentage
|
|
|
Max. Allowable Balance
|
|
Credit Rating
|
|
|
5.75
|
%
|
|
|
|
Medco
|
|
|
4.90
|
%
|
|
|
|
Kaiser
|
|
|
3.00
|
%
|
|
|
|
NR/NR
|
|
|
5.00
|
%
|
|
|
|
|
A3/P3
|
|
|
8.00
|
%
|
|
|
|
|
A2/P2
|
|
|
16.00
|
%
|
|
|
|
|
A1/P1
|
|
|
16.00
|
%
|
|
|
|
|
A1+/P1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Largest
|
|
|
Short-Term
|
|
|
Allowable
|
|
|
Total
|
|
|
Allowable
|
|
|
Excess
|
|
|
|
Obligors
|
|
|
Debt Rating
|
|
|
Percentage
|
|
|
Receivables
|
|
|
Receivables
|
|
|
Receivables
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The undersigned hereby represents and warrants
that the foregoing is a true and accurate accounting
with respect to outstanding receivables as of
accordance with the Receivables Purchase
Agreement dated
and that all
representations and warranties related to such
Agreement are restated and reaffirmed.
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.
2
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.
[signature pages on next page]
3
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/ J.F. Quinn
|
|
|
|
Name:
|
J.F. Quinn
|
|
|
|
Title:
|
Vice President & Corporate Treasurer
|
|
|
|
AMERISOURCEBERGEN DRUG CORPORATION, as Originator
|
|
|
By:
|
/s/ J.F. Quinn
|
|
|
|
Name:
|
J.F. Quinn
|
|
|
|
Title:
|
Vice President & Corporate Treasurer
|
|
|
Second Amendment to Receivables Sale Agreement
(ARFC)
S-1
Exhibit 10.3
EXECUTION COPY
FIRST AMENDMENT TO
AMENDED AND RESTATED PERFORMANCE UNDERTAKING
THIS FIRST AMENDMENT TO AMENDED AND RESTATED PERFORMANCE UNDERTAKING, dated as of April 28,
2011 (this
Amendment
) is executed by AMERISOURCEBERGEN CORPORATION, a Delaware
corporation (the
Performance Guarantor
).
R E C I T A L S
A. The Performance Guarantor executed in favor of Amerisource Receivables Financial
Corporation that certain Amended and Restated Performance Undertaking Agreement, dated as of
December 2, 2004 (as amended, restated, supplemented or otherwise modified from time to time, the
Undertaking
).
B. The Performance Guarantor desire to enter into this Amendment to amend the
Undertaking.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Performance Guarantor:
1.
Certain Defined Terms
. Capitalized terms used but not defined herein shall have
the meanings set forth for such terms in the Undertaking, including by reference therein.
2.
Amendment to the Undertaking
. The Undertaking is hereby amended as follows:
2.1
Section 6(g)
of the Undertaking is amended by deleting the clause covenants set
forth in Sections 6.11 and 6.12 of the Credit Agreement as in effect on the date hereof and
substituting covenant set forth in Section 6.11 of the Credit Agreement as in effect on March 18,
2011 therefor.
3.
Representations and Warranties
. The Performance Guarantor represents and warrants
that:
(a)
Representations and Warranties
. Each representation and warranty made by
it in the Undertaking, 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 Undertaking (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 Undertaking (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.
4.
Effect of Amendment
. All provisions of the Undertaking, as expressly amended and
modified by this Amendment, shall remain in full force and effect. After this Amendment becomes
effective, all references in the Undertaking to this Undertaking, hereof, herein, or words of
similar effect referring to the Undertaking shall be deemed to be references to the Undertaking, as
amended by this Amendment. This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Undertaking (or any related document or agreement) other
than as set forth herein.
5.
Effectiveness
. This Amendment shall become effective on the date hereof (the
Effective Date
) subject to the condition precedent 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; and
(b) such other documents and instruments as a Purchaser 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 UNDERTAKING SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
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.
[signature pages on next page]
2
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.
|
|
|
|
|
|
AMERISOURCEBERGEN CORPORATION
|
|
|
By:
|
/s/ J.F. Quinn
|
|
|
|
Name:
|
J.F. Quinn
|
|
|
|
Title:
|
Vice President & Treasurer
|
|
|
|
|
|
|
|
|
|
Acknowledged and Agreed to:
|
|
|
|
|
|
|
|
|
|
AMERISOURCE RECEIVABLES
|
|
|
FINANCIAL CORPORATION
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ J.F. Quinn
|
|
|
|
|
|
|
|
|
|
Name:
|
|
J.F. Quinn
|
|
|
|
|
Title:
|
|
Vice President & Corporate Treasurer
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-1
|
|
|
|
|
|
|
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrator and as Purchaser Agent for the
Bank of America Purchaser Group
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Nina Austin
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Nina Austin
|
|
|
|
|
Title:
|
|
Vice President
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-2
|
|
|
|
|
|
|
THE BANK OF NOVA SCOTIA,
as Purchaser Agent for the Liberty Street
Funding LLC Purchaser Group
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ J. Frazell
|
|
|
|
|
|
|
|
|
|
Name:
|
|
John Frazell
|
|
|
|
|
Title:
|
|
Director
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-3
|
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent for the Market Street
Funding LLC Purchaser Group
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/William P. Falcon
|
|
|
|
|
|
|
|
|
|
Name:
|
|
William P. Falcon
|
|
|
|
|
Title:
|
|
Vice President
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-4
|
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Purchaser Agent for the
Wells Fargo Bank, National Association
Purchaser Group
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Elizabeth R. Wagner
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Elizabeth R. Wagner
|
|
|
|
|
Title:
|
|
Vice President
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-5
|
|
|
|
|
|
|
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH, as Purchaser
Agent for the Victory Receivables Corporation
Purchaser Group
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Aditya Reddy
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Aditya Reddy
|
|
|
|
|
Title:
|
|
Managing Director
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-6
|
|
|
|
|
|
|
MIZUHO CORPORATE BANK, LTD.,
as Purchaser Agent for the Working Capital
Management Co., LP Purchaser Group
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Bertram H. Tang
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Bertram Tang
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
FIRST AMENDMENT TO PERFORMANCE
UNDERTAKING
S-7