EXHIBIT 4.4
FOURTH AMENDMENT TO
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
AND
ANNEX X
THIS FOURTH AMENDMENT TO RECEIVABLES PURCHASE AND SERVICING
AGREEMENT AND ANNEX X, dated as of December 2, 2002 (this "Fourth Amendment")
relates to (i) that certain Receivables Purchase and Servicing Agreement dated
as of December 20, 2000, as amended by that certain First Amendment dated as of
August 29, 2001, and as amended by that certain Second Amendment dated as of
December 21, 2001, and as amended by that certain Third Amendment dated as of
October 1, 2002, among Blue Hill, the Servicer, the Purchasers and the
Administrative Agent (each as defined below) (the "Purchase Agreement"), (ii)
that certain Sale and Contribution Agreement dated as of December 20, 2000,
between Blue Hill (as defined below) and the Originator (as defined below), as
amended by that certain First Amendment dated as of October 1, 2002, and as
amended by that certain Second Amendment dated as of the date hereof (the "Sale
and Contribution Agreement"), and (iii) Annex X to the Sale and Contribution
Agreement and the Receivables Purchase and Servicing Agreement dated as of
December 20, 2000, as amended by that certain First Amendment dated as of August
29, 2001, and as amended by that certain Second Amendment dated as of December
21, 2001, and as amended by that certain Third Amendment dated as of October 1,
2002 ("Annex X"), and is entered into by and among BLUE HILL II, INC., a
Delaware corporation ("Blue Hill"), AMERISOURCEBERGEN DRUG CORPORATION (f/k/a
Amerisource Corporation), a Delaware corporation ("AmerisourceBergen Drug"), as
successor by merger to Bergen Xxxxxxxx Drug Company, a California corporation,
as the originator (in such capacity, the "Originator") and as the servicer (in
such capacity, the "Servicer"), REDWOOD RECEIVABLES CORPORATION ("Redwood"), as
the conduit purchaser (the "Conduit Purchaser"), and GENERAL ELECTRIC CAPITAL
CORPORATION ("GECC"), as the committed purchaser (the "Committed Purchaser",
together with the Conduit Purchaser, the "Purchasers") and as administrative
agent for the Purchasers ("Administrative Agent"). Capitalized terms used and
not otherwise defined herein shall have the meanings assigned to them in Annex
X.
W I T N E S S E T H
WHEREAS, Blue Hill, the Servicer, the Purchasers and
Administrative Agent have entered into the Purchase Agreement;
WHEREAS, Blue Hill and the Originator have entered into the Sale
and Contribution Agreement;
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WHEREAS, AmerisourceBergen Drug (f/k/a Amerisource Corporation, a
Delaware corporation) as seller and ARFC as buyer have entered into the ASC/ARFC
Purchase Agreement pursuant to which ARFC has purchased ARFC Designated
Receivables, which are Receivables generated by AmerisourceBergen Drug at ARFC
Designated Distribution Centers;
WHEREAS, ARFC, as seller, AmerisourceBergen Drug, as servicer,
AmerisourceBergen Services Corporation, as guarantor, DFC, as buyer and JPMorgan
Chase, as administrative agent, have entered into the ARFC/JPMorgan Chase
Purchase Agreement, pursuant to which ARFC has sold undivided percentage
ownership interests in the ARFC Designated Receivables and related collateral to
DFC;
WHEREAS, Blue Hill has been advised that from time to time the
Originator intends to consolidate certain of the ARFC Designated Distribution
Centers into BH2 Designated Distribution Centers and certain of the BH2
Designated Distribution Centers into ARFC Designated Distribution Centers;
WHEREAS, Blue Hill and the Servicer have requested that the
Purchase Agreement be amended to permit consolidation of certain of the
Distribution Centers of Originator, and Blue Hill, the Originator, the Servicer,
the Purchasers and the Administrative Agent (collectively, the "Parties") have
mutually requested that Annex X be amended to reflect the foregoing (the
"Amendments");
WHEREAS, the Parties are willing to so effect the Amendments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above premises, the
Parties agree as follows:
1. Definitions and Usage. Any reference herein to Section, Exhibit or
Schedule shall, unless otherwise specified, refer to such Section, Exhibit or
Schedule hereof, in its entirety.
2. Amendments to the Purchase Agreement. Upon the Fourth Amendment
Effective Date, the Purchase Agreement is hereby amended as follows:
a. By deleting the text of Section 2.04(d) in its entirety and
substituting the following in its stead:
(d) Repurchases of Transferred Receivables. If (i) the
Originator is required to repurchase Transferred Receivables from
the Seller pursuant to Section 3.2 of the Sale and Contribution
Agreement, or (ii) in connection with a Distribution Center
Consolidation of a BH2 Designated Distribution Center into an ARFC
Designated Distribution Center, the Originator repurchases
Transferred Receivables originated at such BH2 Designated
Distribution Center, then in each case, the Applicable Purchaser
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shall sell and reconvey its Purchaser Interests in such
Transferred Receivables to the Seller either (x) through the
transfer of such Purchaser Interests in exchange for Purchaser
Interests in other Transferred Receivables with an Outstanding
Balance equal to the Outstanding Balance of the Transferred
Receivables being repurchased or (y) for cash in an amount equal
to the Outstanding Balance of the Transferred Receivables being
repurchased. In connection with any reconveyance of Purchaser
Interests by the Purchasers pursuant to a Distribution Center
Consolidation described in clause (ii) above, the Seller, the
Purchasers and Administrative Agent shall execute and deliver a
Purchaser Interest Reconveyance Agreement with respect to the
Purchaser Interests to be reconveyed.
b. By deleting Section 5.03(a) in its entirety and
substituting the following in its stead:
(a) Sales and Adverse Claims Relating to Receivables.
Except as otherwise provided herein and except in connection with
the transfer of Receivables pursuant to a Distribution Center
Consolidation, the Seller will not, and will not permit the
Originator or the Servicer to, (by operation of law or otherwise)
dispose of or otherwise transfer, or create or suffer to exist any
Adverse Claim upon, any material portion of the Transferred
Receivables or any proceeds thereof or any other property or
assets of the Seller.
c. By adding the following Section 6.01(e) in the proper
alphanumerical order:
(e) Distribution Center Consolidation. (i) Notwithstanding
anything in the foregoing Section 6.01 to the contrary, upon the
occurrence of a Distribution Center Consolidation in which a BH2
Designated Distribution Center is being consolidated into an ARFC
Designated Distribution Center and upon satisfaction of the
related conditions precedent set forth in Section 8.13 of the Sale
and Contribution Agreement (other than subsection (e) thereof),
(A) the Seller shall deliver an amended and restated Schedule
4.01(q) to delete reference to the Reassigned Accounts, and (B)
(1) the Seller shall transfer such Reassigned Accounts to the
Originator or any other Person designated by the Originator, and
the Seller shall request, and the Administrative Agent agrees, to
terminate or assign (as requested by the Seller) any Lockbox
Account Agreement or Deposit Account Agreement with respect to
such Reassigned Accounts, or (2) the Seller and Administrative
Agent shall take such other action with respect to
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the Reassigned Accounts as the Seller and Administrative Agent
shall agree.
(ii) Upon the occurrence of a Distribution Center
Consolidation in which an ARFC Designated Distribution Center is
being consolidated into a BH2 Designated Distribution Center and
upon satisfaction of the related conditions precedent set forth in
Section 8.13 of the Sale and Contribution Agreement (other than
subsection (d) thereof), (A) the Seller shall deliver an amended
and restated Schedule 4.01(q) to reflect the Accounts of such ARFC
Designated Distribution Center, and (B) the Seller shall (1)
provide the Administrative Agent with satisfactory evidence that
such Accounts have been transferred to the Seller, and deliver an
executed Lockbox Account Agreement or Deposit Account Agreement,
as applicable, with respect to each such Account or deliver an
assignment of the account control agreement in effect with respect
to the security interest of JPMorgan Chase and DFC in such
Account, in form and substance satisfactory to the Administrative
Agent, or (2) take such other action with respect to such Accounts
as the Seller and the Administrative Agent shall agree.
d. By deleting the last word in Section 6.02(iii), deleting the
period at the end of Section 6.02(iv) and replacing it with a semicolon,
and adding Section 6.02(v) in the proper alphanumerical order:
(v) if on any Business Day the Originator repurchases
Transferred Receivables in connection with a Distribution Center
Consolidation, then the Seller shall deposit in the Collection
Account cash in the amount so received from the Originator for
such payment.
e. By deleting the last word in Section 9.01(u), and adding the
following Sections 9.01(w), (x), (y), (z) and (aa) in proper
alphanumerical order:
(w) any "Termination Event" or "Servicing Default" shall
occur under the ARFC/JPMorgan Chase Purchase Agreement;
(x) AmeriSourceBergen Drug or any of its Consolidated
Subsidiaries shall fail to pay any Debt in excess of $10,000,000
of AmerisourceBergen Drug or any of its Consolidated Subsidiaries,
as the case may be, or any interest or premium on such Debt, in
either case, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument
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relating to such Debt; or any other default under any agreement or
instrument relating to any such Debt or any other event, shall
occur and shall continue after the applicable grace period, if
any, specified in such agreement or instrument if the effect of
such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or a final court
decision of $10,000,000 or more shall be rendered against
AmerisourceBergen Drug or any of its Consolidated Subsidiaries and
(i) such amount remains unpaid and (ii) AmerisourceBergen Drug or
the relevant Consolidated Subsidiary does not, in good faith,
contest such decision within the relevant statutory period;
(y) a case or proceeding shall have been commenced against ARFC
seeking a decree or order in respect of ARFC (i) under the
Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) appointing a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for ARFC or for any substantial part of ARFC's
assets, or (iii) ordering the winding-up or liquidation of the
affairs of ARFC;
(z) ARFC shall (i) file a petition seeking relief under the
Bankruptcy Code or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consent or fail to object in
a timely and appropriate manner to the institution of proceedings
thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar
official) for ARFC or for any substantial part of ARFC's assets,
(iii) make an assignment for the benefit of creditors, or (iv)
take any corporate action in furtherance of any of the foregoing;
or
(aa) any breach by JPMorgan Chase shall have occurred and be
continuing under the Third Amendment Intercreditor Agreement;
f. By deleting clause (i) of the proviso in the last paragraph
of Section 9.01 in its entirety and substituting the following in its
stead:
(i) upon the occurrence of any of the Termination Events described
in Sections 9.01(c), (d), (e), (t), (y) or (z) or
g. By deleting the last word of Section 9.02(d), by adding the
word "or" after the semicolon in Section 9.02(e) and adding the following
Section 9.02(f) in proper alphanumerical order:
(f) there shall have occurred any event which materially and
adversely impairs in the reasonable judgment of the Administrative
Agent the ability of the Servicer to distinguish between BH2
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Designated Receivables and ARFC Designated Receivables or to
segregate collections relating to ARFC Designated Receivables
from Collections relating to BH2 Designated Receivables;
h. By adding Exhibit 2.04(d) in the form and substance of
Annex I, attached hereto and made a part hereof.
3. Amendments to Annex X. Upon the Fourth Amendment Effective
Date, Annex X is hereby amended as follows:
a. By amending the defined term "ARFC Designated
Distribution Center" by inserting the words "from time to time" after
the words "any distribution center of the Originator identified".
b. By deleting the defined term "ARFC Designated
Receivables" in its entirety and substituting the following in its
stead:
"ARFC Designated Receivables" shall mean, collectively (but
without duplication), (i) all Receivables that are generated
by the Originator at any of the ARFC Designated Distribution
Centers and (ii) all Receivables that are acquired by the
Originator pursuant to the ASC Affiliate Purchase Agreement.
From and after a Distribution Center Consolidation, "ARFC
Designated Receivables" shall exclude all Receivables that
become BH2 Designated Receivables pursuant to such
Distribution Center Consolidation.
c. By amending the defined term "BH2 Designated
Distribution Center" by inserting the words "from time to time" after
the words "any distribution center of the Originator identified".
d. By deleting the defined term "BH2 Designated
Receivables" in its entirety and substituting the following in its
stead:
"BH2 Designated Receivables" shall mean all Receivables owned
by the Originator that are generated by the Originator at any
of the BH2 Designated Distribution Centers. From and after a
Distribution Center Consolidation, "BH2 Designated
Receivables" shall exclude all Receivables that become ARFC
Designated Receivables pursuant to such Distribution Center
Consolidation.
e. By amending the defined term "Designated Receivables
Schedule" by adding the following after the last word of the definition
thereof:
, as such Schedule 5.2(p) may be amended from time to time
pursuant to and in connection with a Distribution Center
Consolidation permitted under Section 8.13 of the Sale and
Contribution Agreement.
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f. By adding the following defined term "Distribution
Center Consolidation" in the proper alphabetical order:
"Distribution Center Consolidation" shall mean any
consolidation of a BH2 Designated Distribution Center into an
ARFC Designated Distribution Center and any consolidation of
an ARFC Designated Distribution Center into a BH2 Designated
Distribution Center, in each case, pursuant to, and in
accordance with, Section 8.13 of the Sale and Contribution
Agreement.
g. By deleting the defined term "Lockbox Account" in its
entirety and substituting the following in its stead:
"Lockbox Account" shall mean each lockbox account
listed on Schedule 4.01(q) to the Purchase Agreement
established in the name of the Seller held at a Lockbox Bank,
as such Schedule 4.01(q) may be amended, supplemented and
otherwise modified from time to time to reflect a Distribution
Center Consolidation; and any other segregated deposit account
established by the Seller for the deposit of Collections with
respect to the Transferred Receivables pursuant to and in
accordance with Section 6.01(a) of the Purchase Agreement.
h. By adding the defined term "Purchaser Interest
Reconveyance Agreement" in the proper alphabetical order:
"Purchaser Interest Reconveyance Agreement" shall
mean a purchaser interest reconveyance agreement in the form
and substance attached as Exhibit 2.04(d) to the Purchase
Agreement.
i. By adding the defined term "Reassigned Accounts" in
the proper alphanumerical order:
"Reassigned Accounts" shall have the meaning set
forth in Section 8.13(d)(ii) of the Sale and Contribution
Agreement.
j. By amending the defined term "Receivable" by deleting
subparagraph (f) thereof in its entirety and substituting the
following in its stead:
(f) all invoices, all billing statements and all rights in all
other Contracts with respect to any of the foregoing; and
k. By deleting the defined term "Redwood Termination
Date" in its entirety and substituting the following in its stead:
"Redwood Termination Date" shall mean the date elected by
Redwood or the Collateral Agent (which election shall be
mandatory and immediate upon the occurrence of an event set
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forth in clause (c) below), by notice to the Seller and the
Administrative Agent as the Redwood Termination Date; provided,
that on such date, one or more of the following events shall have
occurred and be continuing: (a) a Seller LOC Draw; (b) the
obligations of the Liquidity Lenders to make Liquidity Loans shall
have terminated and such Liquidity Lenders shall not have
otherwise been replaced or the "Liquidity Termination Date" (as
defined in the LAPA) shall have occurred; (c) an event of default
under the Collateral Agent Agreement or any other Program Document
shall have occurred; (d) the short-term debt rating of a Liquidity
Lender shall have been downgraded by a Rating Agency and such
Liquidity Lender shall not have been replaced in accordance with
the terms of the LAPA within 30 days thereafter; (e) Redwood or
the Collateral Agent shall have determined that the funding of
Transferred Receivables under the Purchase Agreement is
impracticable for any reason whatsoever, including as a result of
(i) a drop in or withdrawal of any of the ratings assigned to the
Commercial Paper by any Rating Agency, (ii) the imposition of
Additional Amounts, (iii) restrictions on the amount of
Transferred Receivables Redwood may finance or (iv) the inability
of Redwood to issue Commercial Paper; (f) any change in accounting
standards shall occur or any pronouncement or release of any
accounting or regulatory body (including FASB, AICPA or the
Securities and Exchange Commission) shall be issued, or any other
change in the interpretation of accounting standards shall occur,
such that all or any portion of the Conduit Purchaser's assets and
liabilities are deemed to be consolidated with the assets and
liabilities of GE Capital or any of its affiliates; (g) a
Termination Event shall have occurred and be continuing; or (h)
the outstanding loans to the Conduit Purchaser under the LAPA
equal or exceed the Conduit Purchaser's Capital Investment at such
time and no interest or other amounts are owed to the Conduit
Purchaser under the Purchase Agreement or the other Related
Documents.
l. By amending the defined term "Related Documents" by inserting
the phrase "each Reconveyance Agreement, each Purchaser Interest
Reconveyance Agreement," after "each Deposit Account Agreement" and prior
to "the Purchase Agreement".
m. By amending the defined term "Transferred Receivable" by
inserting immediately prior to the final period of the definition
thereof, the phrase "; provided further, that any BH2 Designated
Receivable that is repurchased pursuant to a Distribution Center
Consolidation shall not be deemed to be a Transferred Receivable from and
after the date of such repurchase".
n. By deleting the defined term "Unapproved Receivable" in its
entirety and substituting the following in its stead:
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"Unapproved Receivable" shall mean any BH2 Designated
Receivable (a) with respect to which the obligor thereunder is not
an Obligor on any BH2 Designated Receivable and whose customer
relationship with the Originator arises as a result of the
acquisition by such Originator of another Person or (b) that was
originated in accordance with standards established by another
Person acquired by the Originator, in each case, solely with
respect to any such acquisitions that have not been approved in
writing by the Administrative Agent and then only for the period
prior to any such approval; provided, however, that any ARFC
Designated Receivable that becomes a BH2 Designated Receivable in
connection with a Distribution Center Consolidation shall not be
deemed an Unapproved Receivable.
4. Representations and Warranties of the Originator. The Originator
represents and warrants to Blue Hill that, as of the Fourth Amendment Effective
Date and after giving effect to this Fourth Amendment:
a. All of the representations and warranties of the Originator
contained in this Fourth Amendment, the Sale and Contribution Agreement,
the First Amendment to the Sale and Contribution Agreement (as defined
below) and the other Related Documents are true and correct in all
material respects on and as of the Fourth Amendment Effective Date, as if
then made (other than representations and warranties which expressly
speak as of a different date, which shall be true and correct in all
material respects as of that date); and
b. No Termination Event or Incipient Termination Event has
occurred and is continuing or will result after giving effect to this
Fourth Amendment.
5. Representations and Warranties of Blue Hill and the Servicer. Each
of Blue Hill and the Servicer represents and warrants to the Purchasers and the
Administrative Agent that, as of the Fourth Amendment Effective Date and after
giving effect to this Fourth Amendment:
a. All of the representations and warranties of Blue Hill and
the Servicer contained in this Fourth Amendment, the Purchase Agreement
and the other Related Documents are true and correct in all material
respects on and as of the Fourth Amendment Effective Date, as if then
made (other than representations and warranties which expressly speak as
of a different date, which shall be true and correct in all material
respects as of that date);
b. Blue Hill is in compliance with Sections 5.01(d) and (e) of
the Purchase Agreement; and
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c. No Termination Event or Incipient Termination Event has
occurred and is continuing or will result after giving effect to this
Fourth Amendment.
6. Effective Date. This Fourth Amendment shall become effective as of
the date first written above (the "Fourth Amendment Effective Date") upon the
satisfaction of each of the following conditions:
a. The Administrative Agent and Blue Hill shall have received
each of the following documents, in each case in form and substance
satisfactory to the Administrative Agent and Blue Hill:
i. counterparts hereof executed by each of the Parties;
ii. an executed Second Amendment to the Sale and
Contribution Agreement, dated as of the date hereof, between Blue
Hill and the Originator, acknowledged and agreed to by the
Administrative Agent (the "Second Amendment to the Sale and
Contribution Agreement") together with evidence of the
effectiveness of the Second Amendment to the Sale and Contribution
Agreement;
iii. copies of each of the documents required to be
delivered under Section 4 of the Second Amendment to the Sale and
Contribution Agreement and evidence satisfactory to the
Administrative Agent that the conditions precedent thereto have
been satisfied; iv. execution copies of that certain Third
Amendment to Purchase Agreement dated as of the date hereof
between AmerisourceBergen Drug and ARFC and that certain Tenth
Amendment to Receivables Purchase Agreement dated as of the date
hereof among ARFC, AmerisourceBergen Drug, AmerisourceBergen
Services Corporation, DFC and JPMorgan Chase and evidence
satisfactory to the Administrative Agent that the conditions
precedent thereto have been satisfied or waived;
v. a certificate of an officer of the Seller attesting
to the solvency of Seller;
vi. a certificate of an officer of the Servicer attesting
to the solvency of Servicer;
vii. a certificate of an officer of the Seller certifying,
among other things, that the representations and warranties
contained in the Related Documents are correct as of the date
hereof;
viii. a certificate of an officer of the Servicer
certifying, among other things, that the representations and
warranties contained in the Related Documents are correct as of
the date hereof;
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ix. a certificate of the Secretary or Assistant Secretary of the
Seller certifying that no changes have been made to the certificate of
incorporation of the Seller and bylaws of the Seller, and certifying and
attaching resolutions authorizing the Fourth Amendment, and an incumbency
certificate;
x. a certificate of the Secretary or Assistant Secretary of the
Servicer certifying that no changes have been made to the certificate of
incorporation of the Servicer and the bylaws of the Servicer, and
certifying and attaching resolutions authorizing the Fourth Amendment and
an incumbency certificate;
xi. tax and good standing certificates of the Seller in the
states of California and Delaware (to the extent not provided pursuant to
clause (iii) above);
xii. tax and good standing certificates of the Servicer in the
state of California, Pennsylvania and Delaware (to the extent not
provided pursuant to clause (iii) above);
xiii. a legal opinion as to true sale and substantive
consolidation matters delivered by Dechert after giving effect to the
Fourth Amendment;
xiv. a legal opinion as to security interests, enforceability,
non-contravention and corporate matters delivered by Dechert, and in
addition, a legal opinion delivered by the in-house counsel of the
Servicer and the Seller, both, after giving effect to the Fourth
Amendment;
xv. letters from Standard and Poor's Corporation confirming the
A-1+ rating of the commercial paper of Redwood, and from Xxxxx'x
Investors' Service, Inc. confirming the P-1 rating of the commercial
paper of Redwood; and
xvi. such additional documentation as the Administrative Agent
may reasonably request;
b. No law, regulation, order, judgment or decree of any Governmental
Authority shall, and no Party shall have received any notice that litigation is
pending or threatened which is likely to, enjoin, prohibit or restrain the
consummation of the transactions contemplated by this Fourth Amendment, except
for such laws, regulations, orders or decrees, or pending or threatened
litigation, that in the aggregate could not reasonably be expected to have a
Material Adverse Effect;
c. All of the representations and warranties of Blue Hill, the
Originator and the Servicer contained in this Fourth Amendment, the Second
Amendment to Sale and Contribution Agreement and the other Related
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Documents shall be true and correct in all material respects on and as of
the Fourth Amendment Effective Date, as if then made (other than
representations and warranties which expressly speak as of a different
date, which shall be true and correct in all material respects as of that
date);
d. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Fourth Amendment and the Second Amendment to Sale
and Contribution Agreement shall be satisfactory in all respects in form
and substance to the Administrative Agent;
e. No Termination Event or Incipient Termination Event shall have
occurred and be continuing on the Fourth Amendment Effective Date or will
result after giving effect to this Fourth Amendment.
7. Reference to and Effect on the Related Documents.
a. Upon the Fourth Amendment Effective Date, (i) each reference in
the Purchase Agreement, or the Sale and Contribution Agreement (as
amended by the Second Amendment to the Sale and Contribution Agreement)
or any Related Documents to "Annex X" shall mean and be a reference to
Annex X as amended and supplemented hereby, and (ii) each reference in
the Purchase Agreement to "this Agreement", "hereunder", "hereof" or
words of like import, and each reference in the Related Documents to the
Purchase Agreement shall mean and be a reference to the Purchase
Agreement as amended and supplemented hereby.
b. Except to the extent specifically set forth herein, the
respective provisions of the Purchase Agreement, Annex X and the other
Related Documents shall not be amended, modified, waived, impaired or
otherwise affected hereby, and such documents and the Obligations under
each of them are hereby confirmed as being in full force and effect.
c. This Fourth Amendment shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment or
waiver of any other term or condition of the Purchase Agreement, Annex X
or any other Related Document, (ii) prejudice any right or rights which
any of the Parties may now have or may have in the future under or in
connection with the Purchase Agreement, Annex X or any other Related
Document, (iii) require any of the Parties to agree to a similar
transaction on a future occasion or (iv) create any right herein to
another Person or other beneficiary or otherwise, except to the extent
specifically provided herein.
8. Miscellaneous. This Fourth Amendment is a Related Document. The
headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof.
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9. Section Titles. The Section titles in this Fourth Amendment are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
10. Counterparts. This Fourth Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
11. GOVERNING LAW. THIS FOURTH AMENDMENT, AND ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Fourth Amendment. In the event an
ambiguity or question of intent or interpretation arises, this Fourth Amendment
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Fourth Amendment.
13. Waiver by Originator, the Servicer and Blue Hill. Each of the
Originator,the Servicer and Blue Hill hereby waives any claim, defense, demand,
action or suit of any kind or nature whatsoever against the Purchasers or the
Administrative Agent arising on or prior to the date of this Fourth Amendment in
connection with any of the Related Documents or the transactions contemplated
thereunder.
* * * *
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IN WITNESS WHEREOF, Blue Hill, the Originator, the Servicer, the
Purchasers, and the Administrative Agent have caused this Fourth Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BLUE HILL II, INC.
By: _________________________
Name:
Title:
AMERISOURCEBERGEN DRUG CORPORATION,
a Delaware corporation, as successor
by merger to Bergen Xxxxxxxx Drug
Company, a California corporation,
as Originator and as Servicer
By: _________________________
Name:
Title:
SIGNATURE PAGE TO
FOURTH AMENDMENT TO
RPSA AND ANNEX X
REDWOOD RECEIVABLES CORPORATION,
as Conduit Purchaser
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Committed Purchaser
By: ________________________________
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: ________________________________
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
WITH THE CONSENT OF:
XX XXXXXX XXXXX BANK,
as Administrative Agent under the ARFC/JPMorgan
Chase Purchase Agreement
________________________________________________
Name:
Title:
SIGNATURE PAGE TO
FOURTH AMENDMENT TO
RPSA AND ANNEX X
ANNEX I
Exhibit 2.04(d)
(see attached)
EXHIBIT 2.04(d)
FORM OF
PURCHASER INTEREST RECONVEYANCE AGREEMENT
THIS PURCHASER INTEREST RECONVEYANCE AGREEMENT (this "Agreement") is
made and entered into as of [INSERT DATE], among BLUE HILL II, INC., a Delaware
corporation ("Blue Hill"), REDWOOD RECEIVABLES CORPORATION ("Conduit
Purchaser"), and GENERAL ELECTRIC CAPITAL CORPORATION as committed purchaser
("Committed Purchaser") and as administrative agent for the Conduit Purchaser
and the Committed Purchaser (the "Agent"). All capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in Annex X to the
Purchase Agreement (as defined below).
Statement of Facts
Pursuant to that certain Receivables Purchase and Servicing Agreement,
dated as of December 20, 2000, as amended on August 29, 2001, and as amended on
December 21, 2001, and as amended on October 1, 2002, among Blue Hill, the
Servicer, the Purchasers and the Administrative Agent (as further amended,
restated, supplemented or otherwise modified from time to time, the "Purchase
Agreement"), the Purchasers have purchased from Blue Hill undivided percentage
interests in certain trade receivables (and related rights thereto) owned by
Blue Hill and generated by the Originator at BH2 Designated Distribution
Centers.
The Originator has given notice to Blue Hill of the Originator's
intent to consolidate the Consolidating Location (defined below) into an ARFC
Designated Distribution Center in accordance with Section 8.13 of the Sale
Agreement, and, in connection therewith, to repurchase from Blue Hill all
outstanding BH2 Designated Receivables with respect to the Consolidating
Location (as set forth in Schedule I hereto, or in satisfactory form as is
acceptable to the Buyer and consented to by the Administrative Agent, the
"Reassigned Receivables"), and to have Blue Hill release its security interests
therein. Pursuant to Section 2.04(d) of the Purchase Agreement, upon the request
of Blue Hill, each Purchaser shall reconvey its Purchaser Interests in such
Reassigned Receivables either (a) through the transfer of such Purchaser
Interests in exchange for Purchaser Interests in other Transferred Receivables
with an Outstanding Balance equal to the Outstanding Balance of the Reassigned
Receivables or (b) for cash in an amount equal to the Outstanding Balance of the
Reassigned Receivables.
Statement of Terms
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Distribution Center Consolidation. On the date hereof, the Originator
will consolidate the BH2 Designated Distribution Center located at [insert
location details here] (the "Consolidating Location") into the ARFC Designated
Distribution Center located at [insert
location details here]. On the date hereof, the Designated Receivables Schedule
is hereby amended to provide that the Consolidating Location is not a "BH2
Designated Distribution Center" but is an "ARFC Designated Distribution Center".
As of the date hereof, the Outstanding Balance of the Reassigned Receivables is
$[___________] ("Reassigned Receivables Outstanding Balance").
2. Reconveyance by Purchasers.
a. In connection with the Distribution Center Consolidation detailed
in Paragraph 1 above, and subject to the terms and conditions of this
Agreement, each Purchaser hereby sells, assigns, transfers, and conveys to
Blue Hill without recourse, and Blue Hill hereby accepts, purchases and
receives, all of each Purchaser's rights, titles and interests in and to
the Reassigned Receivables. In consideration of each Purchaser's transfer
and conveyance hereunder to Blue Hill of the Reassigned Receivables, Blue
Hill shall either (i) pay to the Administrative Agent on behalf of the
Purchasers a purchase price in cash in the amount equal to the Purchase
Excess, if any, after giving effect to such reconveyance or (ii) transfer
to the Purchasers Purchaser Interests in other Transferred Receivables
having an Outstanding Balance equal to the Reassigned Receivables
Outstanding Balance.
b. Subject to the terms and conditions of this Agreement, the
Administrative Agent and the Purchasers hereby release and terminate all
security interests or other rights or interests that the Administrative
Agent and the Purchasers may have in (i) the Reassigned Receivables, (ii)
the Originator's rights in the merchandise (including returned goods)
relating to the Reassigned Receivables, (iii) all Reassigned Accounts, (iv)
any other Seller Collateral to the extent relating to the foregoing, and
(v) all proceeds, substitutions and replacements for each of the foregoing
(the "Released Security Interest").
3. Effectiveness of this Agreement. This Agreement shall be effective as
of the date hereof upon receipt by the Administrative Agent of counterparts of
this Agreement executed by each of the other parties hereto.
4. Further Assurances. The Administrative Agent and the Purchasers each
hereby agrees to execute and deliver such UCC amendment financing statements and
such other documents as Blue Hill may reasonably request from time to time in
order to more fully effectuate the transactions contemplated by this Agreement
(including, without limitation, those necessary to terminate or assign Lockbox
Account Agreements and Deposit Account Agreements); provided, however, that any
and all such financing statements and other documents shall be prepared and/or
recorded at Blue Hill's expense.
5. Representations and Warranties. Each of the parties hereto represents
and warrants that it has the full corporate or other power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and
that this Agreement has been duly and validly executed and delivered by it (and
assuming the due and valid execution and delivery
hereof by all other parties hereto) constitutes a legal, valid and binding
obligation of such party enforceable against it in accordance with its terms.
6. Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement may be executed in any number
of several counterparts, and each such counterpart shall constitute an original
and all such counterparts together shall constitute one and the same instrument.
The delivery of an executed counterpart hereof by facsimile shall constitute
delivery of an executed counterpart hereof.
* * *
IN WITNESS, each of the parties hereto, by their respective duly
authorized signatories, has executed and delivered this Agreement as of the date
first above written.
BLUE HILL II, INC.
__________________________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and as Committed Purchaser
__________________________________________________
Name:
Title:
REDWOOD RECEIVABLES CORPORATION,
as Conduit Purchaser
__________________________________________________
Name:
Title:
FOURTH AMENDMENT TO
RPSA AND ANNEX X
Schedule I
Reassigned Receivables
FOURTH AMENDMENT TO
RPSA AND ANNEX X
