EXHIBIT 4.29
THIRD AMENDMENT TO
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
AND
ANNEX X
THIS THIRD AMENDMENT TO RECEIVABLES PURCHASE AND SERVICING AGREEMENT
AND ANNEX X, dated as of October 1, 2002 (this "Third 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, 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) (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 ("Annex
X"), and is entered into by and among BLUE HILL II, INC., a Delaware corporation
("Blue Hill"), AMERISOURCEBERGEN DRUG CORPORATION, a Delaware corporation, as
successor by merger to Bergen Brunswig 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;
WHEREAS, effective October 1, 2002, Bergen Brunswig and AmeriSource
Corporation, a Delaware corporation ("ASC"), shall have effectuated a merger
(the "Merger"), by which Bergen Brunswig shall have merged into ASC and in
connection therewith ASC shall have changed its name to AmerisourceBergen Drug
Corporation;
WHEREAS, ASC as seller and AmeriSource Receivables Financial
Corporation, a Delaware corporation ("ARFC"), as buyer have entered into that
certain Purchase Agreement, dated as of May 14, 1999, as amended by that certain
First Amendment to Purchase Agreement dated as of May 16, 2000 (the "ASC/ARFC
Purchase Agreement") pursuant to which ARFC has purchased Receivables originated
by ASC (the "ASC Receivables");
WHEREAS, ARFC as seller, ASC as servicer, Amerisource Health
Corporation as guarantor, Delaware Funding Corporation ("DFC") as buyer and
JPMorgan Chase Bank (f/k/a Morgan Guaranty Trust Company of New York) ("JPMorgan
Chase") as administrative agent, have entered into that certain Receivables
Purchase Agreement, dated as of May 14, 1999, as amended by that certain First
Amendment dated as of May 12, 2000, that certain Second Amendment dated as of
May 26, 2000, that certain Third Amendment dated as of October 17, 2000, that
certain Fourth Amendment dated as of August 29, 2001, that certain Fifth
Amendment dated as of November 7, 2001, that certain Sixth Amendment dated as of
November 30, 2001, that certain Seventh Amendment dated as of February 7, 2002,
that certain Eighth Amendment dated as of August 8, 2002, and that certain Ninth
Amendment dated as of the date hereof (the "ARFC/JPMorgan Chase Purchase
Agreement"), pursuant to which ARFC has sold undivided percentage ownership
interests in the ASC Receivables and related collateral to DFC;
WHEREAS, Blue Hill and the Servicer have requested that the Purchase
Agreement be amended to reflect the Merger and to distinguish the Receivables
sold pursuant to the Sale and Contribution Agreement and the Purchase Agreement
from the Receivables sold pursuant to the ASC/ARFC Purchase Agreement and the
ARFC/JPMorgan Chase Purchase Agreement, 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 Third Amendment
Effective Date, the Purchase Agreement is hereby amended as follows:
a. By deleting each reference therein to "Bergen Brunswig Drug
Company, a California corporation" and replacing it with "AmerisourceBergen
Drug Corporation, a Delaware corporation", and by deleting each reference
therein to "Bergen Brunswig Drug Company" and replacing it with
"AmerisourceBergen Drug Corporation".
b. By deleting the reference in the preamble to "GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation" and replacing it with "GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation".
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c. By deleting the text of Recital B in its entirety and substituting
the following in its stead:
B. The Seller has been formed for the purpose of purchasing, or
otherwise acquiring by capital contribution, certain designated trade
receivables of the Originator.
d. By amending Sections 2.01, 2.04, 4.01(e), 5.01(d), 5.01(e), 5.03(b),
5.03(d), 6.01(a), 7.04, 8.05 and 12.01(a)(iv) by deleting the reference therein
to the defined term "Receivable" and replacing such reference with the defined
term "Transferred Receivable".
e. By deleting the last sentence of Section 4.01(a) in its entirety and
substituting the following in its stead:
Each Significant Subsidiary as defined in the Credit Facility as of the
Third Amendment Effective Date is set forth on Schedule 4.01(a) hereto.
f. By amending Section 4.01(i) by deleting the second, third and fourth
sentences thereto and substituting the following in their stead:
With respect to each of the Seller and the Originator (i) their respective
chief executive offices are located at the respective address for notices
set forth in this Agreement; (ii) the respective offices where all of the
Records with respect to any Receivables are kept are listed on Schedule I
hereto; (iii) each, within the last five years, has operated only under the
trade names identified in Schedule 4.01(i) hereto, and, within the last five
years, has not changed its name, merged or consolidated with any other
corporation or been the subject of any proceeding under Title 11, United
States Code (Bankruptcy), except as disclosed in Schedule 4.01(i) hereto,
(iv) each is a "registered organization" (as defined in Section 9-102(a)(70)
of the UCC) and is organized or incorporated in the jurisdiction set forth
on Schedule 4.01(i) hereto, for purposes of Article 9 of the UCC, and each
is (and at all times) located in such jurisdiction, and (v) the
organizational identification number for each is set forth Schedule 4.01(i)
hereto.
g. By deleting Section 5.01(c) in its entirety and substituting the
following in its stead:
(c) Furnishing Information and Inspection of Records. The Seller will
furnish to the Administrative Agent and the Purchasers such information
(including non-financial information) concerning the Originator's
Receivables, the Transferred Receivables and the Seller Collateral as the
Administrative Agent or a Purchaser may reasonably request. Twice a year
(and at any time during the continuance of an Incipient Termination Event or
Termination Event), the Administrative Agent may (at the expense of the
Seller subject to the limitations set forth
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in the Fee Letter) have its auditors, which may include an independent
public accounting firm, conduct an audit of the Records or make test
verifications of the Originator's Receivables, the Transferred
Receivables and the Collections with respect to the Originator's
Receivables and the Transferred Receivables.
h. By amending Sections 6.02(a)(iii) and 6.02(b)(iv) by deleting the
reference therein to the defined term "Collections" and replacing such reference
with the phrase "Collections on Transferred Receivables", and by amending
Section 6.02(a)(iv) by deleting the reference therein to the defined term
"Collection" and replacing such reference with the phrase "Collection on a
Transferred Receivable".
i. By amending Section 7.01 by deleting the reference therein to
"Contract therefor" and substituting the phrase "the rights and interests under
the Contract therefor as such rights and interests relate to such Transferred
Receivable" in its stead.
j. By deleting Section 7.03(a) in its entirety and substituting the
following in its stead:
(a) (i) In the event that the Servicer is unable to determine the
specific Transferred Receivables on which Collections have been
received from the Obligor thereunder but is able to determine that
such Collections have been received with respect to Transferred
Receivables, the parties agree for purposes of this Agreement only
that such Collections shall be deemed to have been received on such
Transferred Receivables in the order in which they were originated
with respect to such Obligor. In the event that the Servicer is unable
to determine the specific Transferred Receivables on which discounts,
offsets or other non-cash reductions have been granted or made with
respect to the Obligor thereunder, the parties agree for purposes of
this Agreement only that such reductions shall be deemed to have been
granted or made (i) prior to a Termination Event, on such Transferred
Receivables as determined by the Servicer, and (ii) from and after the
occurrence of a Termination Event, on Eligible Receivables in the
reverse order in which they were originated with respect to such
Obligor.
(ii) In the event that the Servicer is unable to determine the
specific Receivables on which Collections have been received from the
Obligor thereunder and is unable to determine whether such Collections
have been received with respect to Transferred Receivables or with
respect to ARFC Designated Receivables, the parties agree for purposes
of this Agreement, the Sale and Contribution Agreement, the ASC/ARFC
Purchase Agreement and the ARFC/JPMorgan Chase Purchase Agreement only
that such Collections shall be allocated among such Receivables on a
pro rata basis, based upon the outstanding balance of all Receivables
in respect of such Obligor net of all Collections and discounts, and
any other modifications, that reduce the Billed Amount of such
Receivables.
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k. By amending Section 7.03(b) by deleting the reference therein to
"Article VI" and substituting "this Agreement" in its stead.
l. By amending Section 7.04 by deleting the reference therein to
"Contract therefor" and substituting the phrase "related rights under the
Contract therefor as such rights relate to such Transferred Receivable" in its
stead.
m. By adding the following Section 7.07(d) in the proper alphanumerical
order:
(d) Servicer Information. The Servicer shall furnish to the
Administrative Agent such information with respect to the Receivables
(including, but not limited to, its procedures for selecting Transferred
Receivables for sale, its procedures for segregating Transferred Receivables
from Receivables other than Transferred Receivables, and its standards and
procedures for selling goods or services on credit) as the Administrative
Agent may reasonably request.
n. By deleting Section 8.06(a) in its entirety and substituting the
following in its stead:
(a) Offices and Records. The Seller shall maintain its principal
place of business and chief executive office and the office at which it
stores its Records at the respective locations specified in Schedule 4.01(i)
or, upon 30 days' prior written notice to the Administrative Agent, at such
other location in a jurisdiction where all action requested by the
Administrative Agent pursuant to Section 14.15 shall have been taken with
respect to the Seller Collateral. Each of the Seller and the Servicer shall,
at its own cost and expense, maintain adequate and complete records of the
Transferred Receivables and the Seller Collateral and, with respect to the
Servicer only, all of the Originator's Receivables, including records of any
and all payments received, credits granted and merchandise returned with
respect thereto and all other dealings therewith. Each of the Seller and the
Servicer shall mark conspicuously with a legend, in form and substance
satisfactory to the Administrative Agent, its books and records, computer
tapes, computer disks and credit files pertaining to the Seller Collateral,
and its file cabinets or other storage facilities where it maintains
information pertaining thereto, to evidence this Agreement and the
assignment and Liens granted pursuant to this Article VIII and in accordance
with Section 5.01(d)(ii). Upon the occurrence and during the continuance of
a Termination Event, the Seller and the Servicer shall deliver and turn over
such books and records to the Administrative Agent or its representatives at
any time on demand of the Administrative Agent. Prior to the occurrence of a
Termination Event and upon notice from the Administrative Agent, the Seller
and the Servicer shall permit any representative of the Administrative Agent
to inspect such books and
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records and shall provide photocopies thereof to the
Administrative Agent as more specifically set forth in Section
8.06(b).
o. By deleting Section 9.01(k) in its entirety and
substituting the following in its stead:
(k) there shall have occurred any event which
materially adversely impairs in the reasonable judgment of the
Administrative Agent the ability of the Servicer to originate
Transferred Receivables of a credit quality, taken as a whole,
which are at least of the credit quality of the Transferred
Receivables, taken as a whole, in the initial Purchase;
p. By deleting 9.01(l) in its entirety and substituting the
following in its stead:
(l) a Material Adverse Effect has occurred since the
Closing Date;
q. By amending Section 14.15(a)(B) by inserting the
parenthetical phrase "(to the extent related to such Transferred
Receivable)" immediately following the reference therein to
"Transferred Receivable".
r. By adding the following Section 14.16 in proper
alphanumerical order:
14.16 Consent to Merger and Acknowledgement of
Assignment. The Administrative Agent, the Purchasers and the
Seller hereby consent to (a) the merger of Durr Fillauer
Medical into Bergen Brunswig, with Bergen Brunswig being the
surviving corporation of such merger, (b) the merger of Bergen
Brunswig into AmeriSource Corporation, with AmeriSource
Corporation being the surviving corporation of such merger and
changing its name to AmerisourceBergen Drug in connection
therewith, and (c) the merger of C.D. Smith Healthcare, Inc.
into AmerisourceBergen Drug, with AmerisourceBergen Drug being
the surviving corporation of such merger. AmerisourceBergen
Drug hereby assumes all obligations and liabilities of Bergen
Brunswig as Servicer hereunder and under the Related
Documents.
s. By amending and restating Schedule 4.01(a) in its
entirety in the form and substance of Annex I, attached hereto and made
a part hereof.
t. By amending and restating Schedule 4.01(i) in its
entirety in the form and substance of Annex II, attached hereto and
made a part hereof.
u. By amending and restating Schedule 4.01(q) in its
entirety in the form and substance of Annex III, attached hereto and
made a part hereof.
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v. By amending Annex 5.02(a) by deleting "or" at the end of
subparagraph (j)(L), replacing the period at the end of subparagraph
(j)(M) with a semicolon and adding subparagraph (j)(N) in the proper
alphanumerical order:
(N) the occurrence of any "Termination Event" or
"Servicing Default" under the ARFC/JPMorgan Chase Purchase
Agreement for which notice has been delivered thereby. Prior
notice to the taking of any enforcement action by DFC or
JPMorgan Chase with respect to any Contract constituting a
master contract with an Obligor with respect to which
Receivables have been sold to both ARFC and BH2.
3. Amendments to Annex X. Upon the Third Amendment Effective
Date, Annex X is hereby amended as follows:
a. By amending the defined terms "Defaulted Receivable",
"Dilution Factors", "Excluded Obligor", "Material Adverse Effect" and
"Records" by deleting the reference therein to the defined term
"Receivable" and replacing such reference with the defined term
"Transferred Receivable".
b. By deleting the defined term "Adverse Claim" in its
entirety and substituting the following in its stead:
"Adverse Claim" shall mean any claim of ownership or
any Lien, other than any ownership interest or Lien created
under the Sale and Contribution Agreement, or the Purchase
Agreement, or any Lien created under the Collateral Agent
Agreement.
c. By adding the following defined term "Amerisource Bergen
Drug" in the proper alphabetical order:
"AmerisourceBergen Drug" shall mean AmerisourceBergen Drug
Corporation, a Delaware corporation.
d. By adding the following defined term "ARFC" in the proper
alphabetical order:
"ARFC" shall mean AmeriSource Receivables Financial
Corporation, a Delaware corporation.
e. By adding the following defined term "ARFC Designated
Distribution Center" in the proper alphabetical order:
"ARFC Designated Distribution Center" shall mean any
distribution center of the Originator identified on the
Designated Receivables Schedule as an "ARFC Designated
Distribution Center".
f. By adding the following defined term "ARFC Designated
Receivables" in the proper alphabetical order:
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"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.
g. By adding the following defined term "ARFC/JPMorgan Chase
Purchase Agreement" in the proper alphabetical order:
"ARFC/JPMorgan Chase Purchase Agreement" shall mean that certain
Receivables Purchase Agreement, dated as of May 14, 1999, among ARFC
as seller, AmerisourceBergen Drug (f/k/a AmeriSource Corporation) as
servicer, Amerisource Health Corporation as guarantor, DFC as buyer
and JPMorgan Chase as administrative agent, as amended by that certain
First Amendment dated as of May 12, 2000, that certain Second
Amendment dated as of May 26, 2000, that certain Third Amendment dated
as of October 17, 2000, that certain Fourth Amendment dated as of
August 29, 2001, that certain Fifth Amendment dated as of November 7,
2001, that certain Sixth Amendment dated as of November 30, 2001, that
certain Seventh Amendment dated as of February 7, 2002, that certain
Eighth Amendment dated as of August 8, 2002, that certain Ninth
Amendment dated as of the Third Amendment Effective Date and as may be
further amended from time to time in accordance with the Third
Amendment Intercreditor Agreement.
h. By adding the following defined term "ASC Affiliate Purchase
Agreement" in the proper alphabetical order:
"ASC Affiliate Purchase Agreement" shall mean the Purchase
Agreement, dated as of May 26, 2000, among each of the sellers party
thereto from time to time and the Originator, as buyer, as amended by
that certain First Amendment, dated as of October 1, 2002 and as may
be further amended from time to time in accordance with the Third
Amendment Intercreditor Agreement.
i. By adding the following defined term "ASC/ARFC Purchase
Agreement" in the proper alphabetical order:
"ASC/ARFC Purchase Agreement" shall mean that certain Purchase
Agreement, dated as of May 14, 1999, between AmerisourceBergen Drug
(f/k/a AmeriSource Corporation) as originator and ARFC as seller, as
amended by that certain First Amendment to Purchase Agreement dated as
of May 26, 2000, that certain Second Amendment to Purchase Agreement
dated as of October 1, 2002 and as may be further amended from time to
time in accordance with the Third Amendment Intercreditor Agreement.
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j. By deleting the defined term "Bergen Entity" in its
entirety and substituting the following in its stead:
"Bergen Entity" shall mean the Parent, AmerisourceBergen
Services Corporation, a Delaware corporation (successor by
merger to Bergen Brunswig Corporation, a New Jersey
corporation), and the Originator.
k. By adding the following defined term "BH2 Designated
Distribution Center" in the proper alphabetical order:
"BH2 Designated Distribution Center" shall mean any
distribution center of the Originator identified on the
Designated Receivables Schedule as a "BH2 Designated
Distribution Center".
l. By adding the following defined term "BH2 Designated
Receivables" in the proper alphabetical order:
"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.
m. By amending clause (e)(i) of the defined term "Cash
Management Event" by deleting it in its entirety and substituting the
following in its stead:
(e)(i) an "Event of Default" shall occur under the Credit
Facility or a "Termination Event" or "Servicing Default" shall
occur under the ARFC/JPMorgan Chase Purchase Agreement,
n. By adding the following defined term "Consolidated
Subsidiary" in the proper alphabetical order:
"Consolidated Subsidiary" means, at any date, for any
Person, any Subsidiary or other entity the accounts of which
would be consolidated under GAAP with those of such Person in
its consolidated financial statements as of such date.
o. By deleting the defined term "Credit and Collection
Policies" in its entirety and substituting the following in its stead:
"Credit and Collection Policies" shall mean the credit,
collection, customer relations and service policies of the
Originator, as such relations and policies relate to the
Transferred Receivables, in effect on the Closing Date, attached
to the Purchase Agreement as Exhibit A, as the same may from
time to time be amended, restated, supplemented or otherwise
modified in accordance with the terms of the Purchase Agreement.
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p. By adding the following defined term "Designated
Receivables Schedule" in the proper alphabetical order:
"Designated Receivables Schedule" means Schedule 5.2(p) to
the Sale and Contribution Agreement.
q. By adding the following defined term "Delaware Funding
Corporation" in the proper alphabetical order:
"DFC" shall mean Delaware Funding Corporation, a Delaware
corporation.
r. By adding the following defined term "Distribution Center"
in the proper alphabetical order:
"Distribution Center" shall mean any BH2 Designated
Distribution Center and any ARFC Designated Distribution Center.
s. By deleting the defined term "General Trial Balance" in
its entirety and substituting the following in its stead:
"General Trial Balance" shall mean with respect to the
Originator and as of any date of determination, the Originator's
accounts receivable trial balance with respect to BH2 Designated
Receivables (whether in the form of a computer printout,
magnetic tape or diskette) as of such date, listing Obligors and
the BH2 Designated Receivables owing by such Obligors as of such
date together with the aged Outstanding Balances of such
Receivables, in form and substance reasonably satisfactory to
the Seller and the Administrative Agent.
t. By adding the defined term "JPMorgan Chase" in the proper
alphabetical order:
"JPMorgan Chase" shall mean JPMorgan Chase Bank (f/k/a
Morgan Guaranty Trust Company of New York).
u. By deleting the defined term "Originator" in its entirety
and substituting the following in its stead:
"Originator" shall mean AmerisourceBergen Drug as the
seller of BH2 Designated Receivables under the Sale and
Contribution Agreement.
v. By deleting the defined term "Outstanding Balance" in its
entirety and substituting the following in its stead:
"Outstanding Balance" shall mean, with respect to any
Transferred Receivable and as of any date of determination, the
amount (which amount shall not be less than zero) equal to (a)
the Billed Amount thereof,
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minus (b) all Collections received from the Obligor thereunder
with respect to such Transferred Receivable, minus (c) all
discounts to or any other modifications that reduce such
Billed Amount; provided, that if after the occurrence or
during the continuation of a Termination Event the
Administrative Agent or the Servicer makes a determination
that all payments by such Obligor with respect to such Billed
Amount have been made, the Outstanding Balance shall be zero.
w. By deleting the defined term "Parent" in its entirety and
substituting the following in its stead:
"Parent" shall mean AmerisourceBergen Corporation, a
Delaware corporation.
x. 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
forth in clause (c), (i) (solely if the events specified in
(i) result in all outstanding Tranche Periods (as defined
under the ARFC/JPMorgan Chase Purchase Agreement) being ended
or the obligations of the Owners (as defined in the
ARFC/JPMorgan Chase Purchase Agreement) being terminated, in
each case in accordance with Section 7.02 of the ARFC/JPMorgan
Chase Purchase Agreement), (j), (k), (l) or (m) 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
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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; (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;
(i) any "Termination Event" or "Servicing Default" shall occur
under the ARFC/JPMorgan Chase Purchase Agreement; (j)
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 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; (k) there shall have
occurred any event which materially adversely impairs in the
reasonable judgment of the Administrative Agent the ability of
the Servicer to distinguish between BH2 Designated Receivables
and ARFC Designated Receivables and to segregate Collections
relating to ARFC Designated Receivables from Collections
relating to BH2 Designated Receivables; (l) 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; (m) 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 (n)
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any breach by JPMorgan Chase of the Third Amendment
Intercreditor Agreement;
y. By deleting the defined term "Sale" in its entirety and
substituting the following in its stead:
"Sale" shall mean, with respect to a sale of BH2
Designated Receivables under the Sale and Contribution
Agreement, a sale of BH2 Designated Receivables by the
Originator to the Buyer in accordance with the terms of the
Sale and Contribution Agreement.
z. By deleting the defined term "Servicer" in its entirety
and substituting the following in its stead:
"Servicer" shall mean AmerisourceBergen Drug, in its
capacity as the Servicer under the Purchase Agreement, or any
other Person designated as a Successor Servicer pursuant to
the Purchase Agreement.
aa. By adding the following defined term "Third Amendment
Effective Date" in the proper alphabetical order:
"Third Amendment Effective Date" shall mean the Effective
Date under (and as defined in) the Third Amendment to
Receivables Purchase and Servicing Agreement and Annex X dated
as of October 1, 2002, among Blue Hill, the Servicer, the
Purchasers and the Administrative Agent.
bb. By adding the defined term "Third Amendment Intercreditor
Agreement" in the proper alphabetical order:
"Third Amendment Intercreditor Agreement" shall mean that
certain Third Amendment Intercreditor Agreement dated as of
the Third Amendment Effective Date, between JPMorgan Chase, as
"Administrative Agent" under the ARFC/JPMorgan Purchase
Agreement, and GE Capital, as Administrative Agent under this
Agreement, as amended, supplemented or otherwise modified from
time to time.
cc. By deleting the defined term "Unapproved Receivable" in
its entirety and substituting the following in its stead:
"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
13
approved in writing by the Administrative Agent and then only
for the period prior to any such approval.
4. Representations and Warranties of the Originator. The
Originator represents and warrants to Blue Hill that, as of the Third Amendment
Effective Date and after giving effect to this Third Amendment:
a. All of the representations and warranties of the
Originator contained in this Third 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 Third 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
Third 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 Third Amendment Effective Date and
after giving effect to this Third Amendment:
a. All of the representations and warranties of Blue Hill
and the Servicer contained in this Third Amendment, the Purchase
Agreement and the other Related Documents are true and correct in all
material respects on and as of the Third 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;
c. After giving effect to the merger transactions described
in Section 4.16 as added in this Third Amendment, AmerisourceBergen
Drug will be a Delaware corporation whose organizational
identification number is 2564484; and
d. No Termination Event or Incipient Termination Event has
occurred and is continuing or will result after giving effect to this
Third Amendment.
6. Effective Date. This Third Amendment shall become effective
as of the date first written above (the "Third 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;
14
ii. an executed First 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 "First Amendment to the Sale and Contribution Agreement")
together with evidence of the effectiveness of the First Amendment to
the Sale and Contribution Agreement;
iii. copies of each of the documents required to be
delivered under Section 4 of the First 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 Second Amendment to
Purchase Agreement dated as of the date hereof between
AmerisourceBergen Drug and ARFC and that certain Ninth 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. an executed Third Amendment Intercreditor Agreement,
dated as of the date hereof, between GE Capital and JPMorgan Chase;
vi. a certificate of an officer of the Seller attesting to
the solvency of Seller;
vii. a certificate of an officer of the Servicer attesting
to the solvency of Servicer;
viii. 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;
ix. 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;
x. a certificate of the Secretary or Assistant Secretary
of the Seller attaching certified certificate of incorporation of the
Seller, bylaws of the Seller, resolutions authorizing the Third
Amendment, and an incumbency certificate;
xi. a certificate of the Secretary or Assistant Secretary
of the Servicer attaching certified certificate of incorporation of the
Servicer, the documents filed with the Secretary of State of the States
of Delaware and California with respect to the Merger, bylaws of the
Servicer, resolutions authorizing the Third Amendment and the Merger,
and an incumbency certificate;
THIRD AMENDMENT TO
RPSA AND ANNEX X
15
xii. 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);
xiii. tax and good standing certificates of the Servicer in
the state of California and Delaware (to the extent not provided
pursuant to clause (iii) above);
xiv. a legal opinion as to true sale and substantive
consolidation matters delivered by Dechert after giving effect to the
Third Amendment;
xv. a legal opinion as to security interests,
enforceability, 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 Third
Amendment;
xvi. letters from Standard and Poor's Corporation confirming
the A-1+ rating of the commercial paper of Redwood, and from Moody's
Investors' Service, Inc. confirming the P-1 rating of the commercial
paper of Redwood; and
xvii. such additional documentation as the Administrative
Agent may reasonably request;
b. The Administrative Agent shall have received satisfactory results of
its UCC, tax lien and judgment searches of the Seller, the Servicer, Durr
Fillauer Medical, C.D. Smith Healthcare, Bergen Brunswig and Amerisource
Corporation and the Administrative Agent shall have received satisfactory
evidence of the filing of the financing statement filed with respect to the
Originator and the amendment financing statement filed with respect to the
Seller, in each case to give effect to the Merger and the Amendments;
c. 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 Third
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;
d. All of the representations and warranties of Blue Hill, the
Originator and the Servicer contained in this Third Amendment, the First
Amendment to Sale and Contribution Agreement and the other Related
Documents shall be true and correct in all material respects on and as of
the Third 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);
e. All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the transactions contemplated by
this Third
THIRD AMENDMENT TO
RPSA AND ANNEX X
16
Amendment and the First Amendment to Sale and Contribution Agreement
shall be satisfactory in all respects in form and substance to the
Administrative Agent;
f. The Administrative Agent shall have completed a collateral
audit and other due diligence with respect to ASC, AmerisourceBergen
Drug Corporation, Bergen Brunswig, and Blue Hill and their respective
Receivables with results satisfactory to the Purchasers and the
Administrative Agent; and
g. No Termination Event or Incipient Termination Event shall have
occurred and be continuing on the Third Amendment Effective Date or
will result after giving effect to this Third Amendment.
7. Reference to and Effect on the Related Documents.
a. Upon the Third Amendment Effective Date, (i) each reference in
the Purchase Agreement, or the Sale and Contribution Agreement (as
amended by the First 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 Third 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 Third Amendment is a Related Document. The
headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof.
9. Section Titles. The Section titles in this Third 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.
THIRD AMENDMENT TO
RPSA AND ANNEX X
17
10. Counterparts. This Third 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 THIRD 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 Third Amendment. In the event an
ambiguity or question of intent or interpretation arises, this Third 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 Third 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 Third Amendment in
connection with any of the Related Documents or the transactions contemplated
thereunder.
* * * *
THIRD AMENDMENT TO
RPSA AND ANNEX X
18
IN WITNESS WHEREOF, Blue Hill, the Originator, the Servicer, the
Purchasers, and the Administrative Agent have caused this Third 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,
as successor by merger to Bergen
Brunswig Drug Company, a California
corporation, as Originator and as
Servicer
By: _________________________
Name:
Title:
SIGNATURE PAGE TO
THIRD AMENDMENT TO
RPSA AND ANNEX X
REDWOOD RECEIVABLES CORPORATION,
as Conduit Purchaser
By: _________________________
Name: Craig Winslow
Title: Assistant Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Committed Purchaser
By: _________________________
Name: Brian P. Schwinn
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: _________________________
Name: Brian P. Schwinn
Title: Duly Authorized Signatory
SIGNATURE PAGE TO
THIRD AMENDMENT TO
RPSA AND ANNEX X
ANNEX I
Schedule 4.01(a)
(see attached)
THIRD AMENDMENT TO
RPSA AND ANNEX X
ANNEX II
Schedule 4.01(i)
(see attached)
THIRD AMENDMENT TO
RPSA AND ANNEX X
ANNEX III
Schedule 4.01(q)
(see attached)
THIRD AMENDMENT TO
RPSA AND ANNEX X