Exhibit 10.37
EXECUTION COPY
THIRD AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT, dated as of December 2, 2004 (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 FROM TIME TO TIME PARTY THERETO, and
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as administrator for each of the Purchaser Groups
party thereto (together with its successors and assigns in such
capacity, the “ Administrator ”).
RECITALS
A. The Seller, Servicer, the various
Purchaser Groups from time to time party thereto 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. Calyon New York Branch (“
Calyon ”), Atlantic Asset Securitization Corp.
(“ Atlantic ”) and Transamerica Occidental Life
Insurance Company (“ Transamerica ”, and
together with Calyon and Atlantic, the “ Exiting
Parties ”) wish to cease to be parties to the
Agreement.
C. 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 The first sentence of
Section 1.3 of the Agreement is hereby amended and
restated in its entirety as follows:
Seller shall provide the
Administrator and each Purchaser Agent with prior written
irrevocable notice in the form set forth as Exhibit XV hereto (a
“Reduction Notice” ) of any proposed
reduction of Aggregate Invested Amount at least one Business Day
prior to any such proposed reduction.
2.2 Clause (u) of
Section 7.3 of the Agreement is hereby amended and
restated in its entirety as follows:
(u) Financial Statements . In
the event that (i) the balance sheet and/or the statements of
income and cash flow (as described in Section 5.3(k)) of
AmerisourceBergen and its Consolidated Subsidiaries are no longer
publicly available and (ii) the Credit Agreement has been
terminated, AmerisourceBergen shall, within 90 or 120 days of the
end of the applicable quarter or Fiscal Year, respectively, provide
copies of such balance sheet and/or statements of income and cash
flow to the Administrator (which shall promptly forward a copy to
each Purchaser Agent).
2.3 Clause (o) of
Section 9.1 of the Agreement is hereby amended and
restated in its entirety as follows:
(o) AmerisourceBergen shall default
or fail in the performance or observance of any of the covenants
set forth in Sections 6.11 or 6.12 of the Credit Agreement as in
effect on the date hereof (without giving effect to any amendment,
waiver, termination, supplement or other modification thereof
unless consented to by the Required Purchaser Agents; or
2.4 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 (c) thereof),
“Loan Parties,” “Securitization,”
“Securitization Entity,” or “Subsidiary Loan
Party” 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),
6.02(e), 6.04(g), 6.05(b), 6.05(c), 6.07(a)(i), 6.07(b)(ii),
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
2.5 The Scheduled Facility
Termination Dates with respect to the Commitment of Bank of
America, National Association, as set forth on Fleet Securities,
Inc.’s signature page to the Agreement, are hereby amended by
(i) deleting the date “July 6, 2006” therein
and substituting the date “November 29, 2007” therefor
and (ii) deleting the date “July 7, 2005” therein
and substituting the date “December 1, 2005”
therefor.
2.6 The Commitment and Scheduled
Facility Termination Dates with respect to the Commitment of The
Bank of Nova Scotia, as set forth on its signature page to
the
2
Agreement, are hereby amended and
restated in their entirety as set forth on The Bank of Nova
Scotia’s signature page hereto.
2.7 The Commitment and Scheduled
Facility Termination Dates with respect to the Commitment of
Wachovia Bank, National Association, as set forth on its signature
page to the Agreement, are hereby amended and restated in their
entirety as set forth on the Administrator’s signature page
hereto.
2.8 The Commitment and Scheduled
Facility Termination Dates with respect to the Commitment of PNC
Bank, National Association, as set forth on its signature page to
the Agreement, are hereby amended and restated in their entirety as
set forth on PNC Bank, National Association’s signature page
hereto.
2.9 Exhibit I to the
Agreement is hereby amended by adding the following definitions
where alphabetically appropriate:
“Government Receivable
Excess” means,
the amount by which the aggregate Outstanding Balance of all
Government Receivables exceeds an amount equal to 5.0% of the
Outstanding Balance of all Eligible Receivables.
“Invoice Payment
Terms” means,
with respect to any Receivable, the number of days following the
date of the related original invoice by which such Receivable is
required to be paid in full, as set forth in such original
invoice.
“Walgreen Extended Term
Receivables” has the meaning set forth in clause (q) of
the definition of Eligible Receivable.
2.10 The definition of “Credit
Agreement” as set forth in Exhibit I to the Agreement
is hereby amended and restated in its entirety as
follows:
“Credit
Agreement” shall mean the Credit Agreement dated as of
December 2, 2004, among AmerisourceBergen, the lenders named
therein and JPMorgan Chase Bank, N.A., as a
