EIGHTH AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT
THIS EIGHTH AMENDMENT TO RECEIVABLES PURCHASE
AGREEMENT, dated as of December 18, 2008 (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
”).
A. The Seller, Servicer, the Purchaser
Groups and the Administrator are parties to that certain
Receivables Purchase Agreement, dated as of July 10, 2003 (as
amended, supplemented or otherwise modified from time to time, the
“ Agreement ” or the “ Receivables
Purchase Agreement ”).
B. The parties hereto desire to enter into
this Amendment to amend the Agreement as provided
herein.
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:
(a) Clause (X) of
Section 1.1(b) of the Agreement is hereby amended and
restated in its entirety as follows:
upon at least 10 Business Days’ prior
written notice in substantially the form of Exhibit XVIII
hereto (a “Purchase Limit Increase
Request” ) to the Administrator and each Purchaser
Agent, request that each Purchaser Group increase its respective
existing Group Commitment; provided that:
(i) such requested increase shall be in an
amount not less than $50,000,000 in the aggregate and the Purchase
Limit after giving effect to such increases shall not exceed the
sum of (A) the Non-Accordion Purchase Limit and (B)
$250,000,000 without the prior written consent of all Purchaser
Agents,
(ii) each Purchaser Agent (on behalf of the
related Purchaser Group) shall, in its sole discretion, make a
determination whether or not to grant any request to increase its
Purchaser Group’s Group Commitment under this clause
(b) and shall notify the Seller and the Administrator in
writing of such determination within ten (10) Business Days of
receipt of a Purchase Limit Increase Request; provided that if any
Purchaser Agent fails to so notify the Seller or the Administrator,
the applicable Purchasers shall be deemed to have refused to
consent to such Purchase Limit Increase Request,
(iii) the Seller’s request for the
increases in the respective Group Commitments of the Purchaser
Groups shall be ratable with respect to each such Purchaser Group
(according to the then existing Group Commitments of all such
Purchaser Groups), and if Purchaser Groups holding less than 100%
of the aggregate Group Commitments of all Purchaser Groups consent
to such increase in their respective Group Commitment, the Seller
may request increases in the Group Commitments of the Purchaser
Groups who have consented (any such Purchaser Group, an
“Increasing Purchaser Group” ) (by
written notice to the Purchaser Agents for the Increasing Purchaser
Groups), on a ratable basis (based on the then existing Group
Commitments of all such Increasing Purchaser Groups), unless
otherwise consented to in writing by all the Purchaser Agents for
such Increasing Purchaser Groups and at the sole discretion of the
Purchaser Agents for each such Increasing Purchaser
Group,
(iv) notwithstanding anything herein to the
contrary, (A) to the extent the Aggregate Invested Amount is
at any time equal to or less than the Non-Accordion Purchase Limit,
all Incremental Purchases shall be made during such time ratably
according to each Purchaser’s Ratable Share of the
Non-Accordion Purchase Limit prior to giving effect to any
increases under this clause (b) and (B) so long as the
Aggregate Invested Amount is greater than the Non-Accordion
Purchase Limit, all Incremental Purchases with respect to the
Accordion Purchase Limit shall be made ratably according to each
Purchaser’s Accordion Ratable Share of the Accordion Purchase
Limit,
(v) on the first day of the second calendar
quarter of each year, (A) the Purchase Limit, if greater than
the Non-Accordion Purchase Limit on the last day of the immediately
preceding calendar quarter, shall automatically be reduced to the
Non-Accordion Purchase Limit and each Purchaser Group’s Group
Commitment will revert to the amount shown on its signature page
herein and (B) if the aggregate Accordion Invested Amount is
greater than zero after giving effect to such automatic reduction
pursuant to this sub-clause (v), the Seller shall pay to each
Purchaser Agent for the benefit of the related Purchasers in the
Increasing Purchaser Groups immediately an amount to be applied to
reduce such Purchaser’s Accordion Invested Amount (ratably,
according to each Purchaser’s Accordion Invested Amount),
such that after giving effect to such payment, the aggregate
Accordion Invested Amount is equal to zero, and
(vi) the Seller shall (and shall cause the
Servicer to) deliver all documents, instruments, reports, opinions
and agreements as the Administrator and any Purchaser Agent may
reasonably request in connection with making a determination as to
whether or not to grant any request under this clause (b),
including, on or prior to the effectiveness of any increase
pursuant to this clause (b), a confirmation regarding such increase
for each Increasing Purchaser Group, substantially in the form of
Exhibit XX hereto (an “ Accordion
Confirmation ”) and executed by the Seller, the
Servicer, the Administrator and the Purchaser Agent for each such
Increasing Purchaser Group, an executed copy of which shall be
circulated to each Purchaser Agent by the Administrator,
or
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(b) Sub-clause fourth of clause
(b) of Section 2.2 of the Agreement is hereby
amended and restated in its entirety as follows:
fourth, if required under Section 1.1(
b)(v)(B) , 1.3 or 1.4 , first, to the reduction
of the aggregate Accordion Invested Amount (ratably according to
each Purchaser’s Accordion Invested Amount until such amount
is reduced to zero) and second, to the ratable reduction of the
Aggregate Invested Amount (in each case, after giving effect to the
amounts, if any, distributed pursuant to clause third
above),
(c) Exhibit I to the Agreement
is hereby amended by inserting, in the appropriate alphabetical
order, the following new definitions:
“Accordion
Confirmation” has the meaning set forth in
Section 1.1(b)(vi) .
“Accordion Group
Commitment” means with respect to any Purchaser Group, the
aggregate amount of any increase in such Purchaser Group’s
Group Commitment pursuant to Section 1.1(b) consented to by
the Purchaser Agent on behalf of the Purchasers in such Purchaser
Group.
“Accordion Purchase
Limit” means
the aggregate of the amount of any increase to the Purchase Limit
pursuant to Section 1.1(b) consented to by the
Increasing Purchaser Groups; provided , that the Accordion
Purchase Limit shall in no event exceed $250,000,000 without the
consent of all Purchaser Agents.
“Accordion Ratable
Share” means,
for each Purchaser Group (other than those comprised of Exiting
Purchasers), such Purchaser Group’s Accordion Group
Commitment divided by the aggregate Accordion Group Commitments of
all Purchaser Groups (other than those comprised of Exiting
Purchasers).
(d) The definition of “Accordion
Invested Amount” set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as
follows:
“Accordion Invested
Amount” means,
with respect to any Purchaser and its related Invested Amount, the
portion, if any, of such Invested Amount being funded or maintained
by such Purchaser under its Purchaser Group’s Accordion Group
Commitment.
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(e) The definition of “Ratable
Share” set forth in Exhibit I to the Agreement is
hereby amended and restated in its entirety as follows:
“Ratable Share”
means, for each Purchaser Group
(other than those comprised of Exiting Purchasers), such Purchaser
Group’s Group Commitments (excluding any Accordion Group
Commitment) divided by the aggregate Group Commitments (excluding
any Accordion Group Commitments) of all Purchaser Groups (other
than those comprised of Exiting Purchasers).
(f) Exhibit II to the
Agreement is hereby amended and restated in its entirety as
Exhibit II attached hereto.
(g) Exhibit XV to the
Agreement is hereby amended and restated in its entirety as
Exhibit XV attached hereto.
(h) The Agreement is hereby amended by
inserting a new Exhibit XX as Exhibit XX
attached hereto.
(i) Solely with respect to the Accordion
Period in effect during the first calendar quarter of 2009, such
Accordion Period shall end no later than March 30, 2009 and,
notwithstanding clause (v) of Section 1.1(b) of
the Agreement (after giving effect to the amendment contemplated
above), any reductions required under such clause (v) shall
instead occur on the last day of the first calendar quarter of
2009.
3. Accordion Confirmation . Each of
the parties hereto hereby agrees that the Accordion Confirmation
attached as Schedule I hereto shall constitute an
Accordion Confirmation, and satisfy the requirements for an
Accordion Confirmation under Section 1.1(b)(X)(vi)(b) of the
Agreement (as amended hereby) for the accordion increase scheduled
to be effective January 2, 2009; provided , that, the
Administrator or any Purchaser Agent may require an updated
Accordion Confirmation to be executed on or prior to
January 2, 2009 to the extent that there have been any
intervening changes to the Purchase Limit, Accordion Group
Commitments or the like.
4. 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; and
(iii) the Facility Termination Date for all
Purchaser Groups has not occurred.
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5. 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.
6. Effectiveness . This Amendment
shall become effective on the date hereof (the “ Effective
Date ” upon satisfaction of each of the following
conditions:
(a) receipt by the Administrator of
counterparts of this Amendment executed by each of the parties
hereto, in form and substance satisfactory to the Administrator;
and
(b) receipt by the Administrator of such
other agreements, documents, opinions and instruments as the
Administrator may request.
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