Attached files
| file | filename |
|---|---|
| EX-32 - EXHIBIT 32 - AMERISOURCEBERGEN CORP | exhibit32-q12018.htm |
| EX-31.2 - EXHIBIT 31.2 - AMERISOURCEBERGEN CORP | exhibit312-q12018.htm |
| EX-31.1 - EXHIBIT 31.1 - AMERISOURCEBERGEN CORP | exhibit311-q12018.htm |
| EX-10.2 - EXHIBIT 10.2 - AMERISOURCEBERGEN CORP | exhibit102withexa.htm |
| EX-10.1 - EXHIBIT 10.1 - AMERISOURCEBERGEN CORP | exhibit101.htm |
| 10-Q - 10-Q - AMERISOURCEBERGEN CORP | a10-qxq12018.htm |
Exhibit 10.3
EXECUTION VERSION
SECOND AMENDMENT TO
AMENDED AND RESTATED PERFORMANCE UNDERTAKING
THIS SECOND AMENDMENT TO AMENDED AND RESTATED PERFORMANCE
UNDERTAKING, dated as of December 18, 2017 (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 Clause (b)(i) of the definition of “Guaranteed Obligations” as set forth in Section
1 of the Undertaking is hereby replaced in its entirety with the following:
“(i) as Servicer under the Amended and Restated Receivables Purchase
Agreement, dated as of April 29, 2010, by and among Recipient, as Seller,
AmerisourceBergen Drug Corporation, as Servicer, the various Purchaser
Groups from time to time party thereto, and The Bank of Tokyo-
Mitsubishi UFJ, Ltd., as Administrator (as amended, restated or otherwise
modified, the “Receivables Purchase Agreement” and, together with the
Sale Agreement, the “Agreements”) or”
2.2 Section 6(g) of the Undertaking is hereby replaced in its entirety with the
following:
“(g) Financial Covenants. Performance Guarantor shall comply at all
times with the covenants set forth in Sections 6.09 and 6.10 of the Credit
Agreement (without giving effect to any amendment, waiver, termination,
supplement or other modification thereof unless consented to by the
Administrator and the Required Purchaser Agents).”
726152227 03128405
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.
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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]
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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 & Corporate Treasurer
Acknowledged and Agreed to:
AMERISOURCE RECEIVABLES
FINANCIAL CORPORATION
By: /s/ J.F. Quinn
Name: J.F. Quinn
Title: Vice President & Corporate Treasurer
S-1 SECOND AMENDMENT TO
PERFORMANCE UNDERTAKING
726152227 03128405
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., as Administrator and as Purchaser
Agent for the Victory Receivables Corporation
Purchaser Group
By: /s/ Luna Mills
Name: Luna Mills
Title: Managing Director
S-2 SECOND AMENDMENT TO
PERFORMANCE UNDERTAKING
726152227 03128405
THE BANK OF NOVA SCOTIA,
as Purchaser Agent for the Liberty Street
Funding LLC Purchaser Group
By: /s/ Michelle C. Phillips
Name: Michelle C. Phillips
Title: Execution Head & Director
S-3 SECOND AMENDMENT TO
PERFORMANCE UNDERTAKING
726152227 03128405
PNC BANK, NATIONAL ASSOCIATION,
as a Purchaser Agent
By: /s/ Eric Bruno
Name: Eric Bruno
Title: Senior Vice President
S-4 SECOND AMENDMENT TO
PERFORMANCE UNDERTAKING
726152227 03128405
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Purchaser Agent for the
Wells Fargo Bank, National Association
Purchaser Group
By: /s/ Eero Maki
Name: Eero Maki
Title: Managing Director
S-5 SECOND AMENDMENT TO
PERFORMANCE UNDERTAKING
726152227 03128405
MIZUHO BANK, LTD.,
as a Purchaser Agent
By: /s/ Bertram H. Tang
Name: Bertram H. Tang
Title: Authorized Signatory
S-6 SECOND AMENDMENT TO
PERFORMANCE UNDERTAKING
726152227 03128405