Exhibit 10.43
EXECUTION COPY
FIFTH AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT
THIS FIFTH AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT, dated as of November 14, 2006 (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
VARIOUS PURCHASER GROUPS party to the Agreement (as defined below),
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as administrator for each of the Purchaser Groups
party thereto (in such capacity, the “ Administrator
”).
RECITALS
A. The Seller, Servicer, the various
Purchaser Groups and the Administrator have entered into that
certain Receivables Purchase Agreement, dated as of July 10,
2003 (as amended, 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:
(a) Each reference to the
Administrator’s address, contact person, facsimile number and
telephone number in the Agreement is hereby amended and restated
such that each such reference reads as follows:
Wachovia Bank, National Association,
as Administrator
171 17 th Street, N.W.
Mailcode GA-4524
Atlanta, Georgia 30363
Attention: Elizabeth R.
Wagner
Fax: (404) 214-5481
Telephone:
(404) 214-5456
(b) Section 1.1(b) of the
Agreement is hereby amended and restated in its entirety as
follows:
(b) Seller may, once monthly, during
each of the first and fourth calendar quarters of each year (the
“ Accordion Period ” )
(X) 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 their 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 $750,000,000 without the prior written
consent of all Purchaser Agents, (ii) on the first day of the
second calendar quarter of each year, (A) the Purchase Limit,
if greater than $500,000,000 on the last day of the immediately
preceding calendar quarter, shall automatically be reduced to
$500,000,000 and each Purchaser Group’s Group Commitment will
revert to the amount shown on its signature page herein and
(B) if the Aggregate Investment Amount would exceed the
Purchase Limit after giving effect to such automatic reduction
pursuant to this clause (b) (such excess hereinafter
referred to as the “ Accordion Invested Amount
”), the Seller shall pay to each Purchaser Agent for the
benefit of the related Purchasers immediately an amount to be
applied to reduce the Aggregate Invested Amount (ratably, according
to each Purchaser’s aggregate Accordion Invested Amount),
such that after giving effect to such payment, the Aggregate
Invested Amount is equal to the Purchase Limit, (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,
(iv) each Purchaser Agent (and the related Purchaser Group)
shall, in its sole discretion, make a determination whether or not
to so grant any request under this clause (b) and
(v) 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) , or
(Y) upon at least 10 Business
Days’ prior written notice in substantially the form of
Exhibit XIX hereto (a “ Purchase Limit Decrease
Notice ”) to the Administrator and each Purchaser
Agent, the Seller may request a reduction in the Purchase Limit to
an amount no less than $500,000,000 (ratably, based on such
Purchaser Group’s Accordion Invested Amount after giving
effect to any increases under this clause (b )) and such
decrease shall be in an amount not less than $50,000,000 in the
aggregate, and, if the Aggregate Invested Amount would exceed the
Purchase Limit after giving effect to such optional reduction
pursuant to this clause (b) , the Seller shall pay to each
Purchaser Agent for the benefit of the related Purchasers
immediately upon such optional reduction an amount to be
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applied to reduce the Aggregate
Invested Amount (ratably, according to each Purchaser’s
aggregate Accordion Invested Amount), such that after giving effect
to such payment, the Aggregate Invested Amount is equal to the
Purchase Limit,.
(c) The first sentence in
Section 7.1(n) of the Agreement is hereby amended by
adding the following phrase immediately before the period
concluding such sentence:
“; provided that, so long as
(i) at any time during such calendar year the difference
between the Purchase Limit minus the daily weighted average
Aggregate Invested Amount is less than the product of 50.0% times
the Purchase Limit, (ii) ABDC has, at such time, debt ratings
at or above BBB- by Standard & Poor’s, Ba1 by
Moody’s and BBB by Fitch and (iii) no Amortization Event
or Unmatured Amortization Event has occurred and is continuing,
then any such audit to be conducted during the calendar year 2008
shall not be via visit or onsite inspection, but shall be in form,
scope and substance reasonably satisfactory to the Administrator
and the Purchaser Agents”
(d) The first sentence in
Section 7.3(p) of the Agreement is hereby amended by
adding the following phrase immediately before the period
concluding such sentence:
“; provided that, so long as
(i) at any time during such calendar year the difference
between the Purchase Limit minus the daily weighted average
Aggregate Invested Amount is less than the product of 50.0% times
the Purchase Limit, (ii) ABDC has, at such time, debt ratings
at or above BBB- by Standard & Poor’s, Ba1 by
Moody’s and BBB by Fitch and (iii) no Amortization Event
or Unmatured Amortization Event has occurred and is continuing,
then any such audit to be conducted during the calendar year 2008
shall not be via visit or onsite inspection, but shall be in form,
scope and substance reasonably satisfactory to the Administrator
and the Purchaser Agents”
(e) Clause (s) of
Section 9.1 of the Agreement is hereby amended and
restated in its entirety as follows:
(s)(i) definition of “Excluded
Subsidiary” (clause (b) thereof), “Loan
Parties,” “Securitization,” “Securitization
Entity,” or “Designated Subsidiary” contained in
the Credit Agreement is amended, modified or waived without the
prior written consent of the Administrator and the Required
Purchaser Agents; (ii) Section 6.01(b)(i), 6.02(e), 6.04
(the last sentence (other than clause (b) thereof) thereto),
6.05(b), 6.05(c), 6.08(b), 6.08(c), 6.08(d) or 6.09 (clause
(i) of the first proviso thereto) of the Credit Agreement is
amended, modified or waived without the prior written consent of
the Administrator and the Required Purchaser Agents; or
(iii) any other provision of (including by the addition of a
provision) the Credit Agreement is amended, modified or waived
without the prior written consent of the Administrator and the
Required Purchaser Agents in any way which could materially and
adversely impair the interests of the Administrator, any Purchaser
Agent or any Purchaser in the Receivables, Related Security or
Collections or could result in the creation of a Lien thereof;
or
(f) Section 13.4 of the
Agreement is hereby amended and restated in its entirety as
follows:
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Section 13.4
Confidentiality .
(a) Each of the parties hereto shall
maintain and shall cause each of its employees and officers to
maintain the confidentiality of the Agreement and all information
with respect to the other parties, including all information
regarding their respective businesses obtained by it or them in
connection with the structuring, negotiating and execution of the
transactions contemplated herein, except that each such party and
its directors, officers and employees may (i) disclose such
information to its accountants, attorneys, investors, potential
investors, credit enhancers to the Purchasers and the agents or
advisors of such Persons (“ Excepted Persons
”), provided , however , that each Excepted
Person shall, as a condition to any such disclosure, agree for the
benefit of the parties hereto that such information shall be used
solely in connection with such Excepted Person’s evaluation
of, or relationship with, the Seller and its affiliates,
(ii) disclose the existence of the Agreement, but not the
financial terms thereof, (iii) disclose such information as
required pursuant to any law, rule, regulation, direction, request
or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force or effect of law) and
(iv) disclose the Agreement and such information in any suit,
action, proceeding or investigation (whether in law or in equity or
pursuant to arbitration) involving any of the Transaction Documents
for the purpose of defending itself, reducing its liability, or
protecting or exercising any of its claims, rights, remedies, or
interests under or in connection with any of the Transaction
Documents; pr
