Sale And Contribution Agreement

EXHIBIT 4.7


AMENDED AND RESTATED ANNEX X
dated as of December 20, 2002


to


SALE AND CONTRIBUTION AGREEMENT
dated as of December 20, 2000, and as heretofore amended


and


AMENDED AND RESTATED
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
dated as of December 20, 2002


Definitions and Interpretation


ABDC/Blue Hill II A&R Annex X


Section 1. Definitions and Conventions. Capitalized terms used in the Sale and Contribution Agreement and the Purchase Agreement shall have (unless otherwise provided elsewhere therein) the following respective meanings:


"1999 Audited Financials" shall have the meaning set forth in Section 4.01(h) of the Purchase Agreement.


"2000 Audited Financials" shall have the meaning set forth in Section 4.01(h) of the Purchase Agreement.


"Accession Agreement" shall mean an Accession Agreement substantially in the form of Exhibit A to the Collateral Agent Agreement.


"Accounts" shall mean the Agent's Account, the Lockbox Accounts, the Deposit Accounts, and the Reserve Account, collectively.


"Accrued Monthly Yield" shall mean, as of any date of determination within a Settlement Period, the sum of the Daily Yields for each day from and including the first day of the Settlement Period through and including such date.


"Accrued Purchaser Group Commitment Fee" shall mean, as of any date of determination within a Settlement Period, the sum of the Purchaser Group Commitment Fees calculated for each day from and including the first day of the Settlement Period through and including such date.


"Accrued Servicing Fee" shall mean, as of any date of determination within a Settlement Period, the sum of the Servicing Fees calculated for each day from and including the first day of the Settlement Period through and including such date.


"Additional Amounts" shall mean any amounts payable to any Affected Party under Sections 2.09 or 2.10 of the Purchase Agreement.


"Additional Costs" shall have the meaning assigned to it in Section 2.09(b) of the Purchase Agreement.


"Administrative Agent" shall have the meaning set forth in the Preamble of the Purchase Agreement.


"Administrative Services Agreement" shall mean that certain Administrative Services Agreement dated as of March 7, 2000, between Redwood and the Operating Agent.


"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 or the other Program Documents.


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"Affected Party" shall mean each of the following Persons: the Purchasers, the Liquidity Agents, the Liquidity Lenders, the Administrative Agent, the Purchaser Agents, each other Program Support Provider and each Affiliate of the foregoing Persons.


"Affiliate" shall mean, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, ten percent (10%) or more of the Stock having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Person's officers, directors, joint venturers and partners. For the purposes of this definition, "control" of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.


"Agent's Account" shall mean that certain segregated deposit account established by the Administrative Agent in accordance with the requirements set forth in Section 6.01(c) of the Purchase Agreement.


"Agreement" shall mean (a) as used in the Purchase Agreement, the Purchase Agreement, and (b) as used in the Sale and Contribution Agreement, the Sale and Contribution Agreement.


"Aggregate Capital Investment" shall mean, as of any date of determination, an amount equal to the sum of all Capital Investments for each Purchaser.


"Aggregate Capital Investment Available" shall mean, as of any date of determination, the amount, if any, by which Availability exceeds Aggregate Capital Investment, in each case as of the end of the immediately preceding day.


"Amended and Restated Agreement" shall have the meaning assigned to it in the recitals to the Purchase Agreement.


"AmerisourceBergen Drug" shall mean AmerisourceBergen Drug Corporation (f/k/a AmeriSource Corporation), a Delaware corporation, as successor by merger to Bergen Brunswig.


"Appendices" shall mean, with respect to any Related Document, all exhibits, schedules, annexes and other attachments thereto, or expressly identified thereto.


"Applicable Financials" shall mean (a) if the Closing Date is before, or less than 10 days after, the release of the 2000 Audited Financials, the 1999 Audited Financials, or (b) if the Closing Date is 10 days or more after the release of the 2000 Audited Financials, the 2000 Audited Financials.


"Applicable Purchaser" shall mean (a) with respect to Redwood's Purchaser Group (i) prior to the occurrence of a GE Capital Funding Event, the Conduit Purchaser, and (ii) on and after the occurrence of a GE Capital Funding Event, the Committed Purchaser, and (b) with respect to each other Purchaser Group, the Purchaser who has made (or will make) the Purchase in question.


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"ARFC" shall mean AmeriSource Receivables Financial Corporation, a Delaware corporation.


"ARFC Designated Distribution Center" shall mean any distribution center of the Originator identified from time to time on the Designated Receivables Schedule as an "ARFC Designated Distribution Center".


"ARFC Designated Receivables" shall mean, collectively (but without duplication), (a) all Receivables that are generated by the Originator at any of the ARFC Designated Distribution Centers and (b) 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.


"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, that certain Tenth Amendment dated as of December 2, 2002, and as may be further amended from time to time in accordance with the Third Amendment Intercreditor Agreement.


"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.


"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, that certain Third Amendment to Purchase Agreement, dated as of December 2, 2002, and as may be further amended from time to time in accordance with the Third Amendment Intercreditor Agreement.


"Assignment Agreement" shall mean an agreement substantially in the form set forth in Exhibit 14.02(b) to the Purchase Agreement.


"Authorized Officer" shall mean, with respect to any corporation, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer,


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any Assistant Secretary, any Assistant Treasurer and other officers of such corporation, so long as each such officer is specifically authorized in resolutions of the Board of Directors of such corporation to sign agreements, instruments or other documents on behalf of such corporation in connection with the transactions contemplated by the Sale and Contribution Agreement, the Purchase Agreement and the other Related Documents.


"Availability" shall mean, as of any date of determination, the amount equal to the lesser of (a) (i) the Investment Base multiplied by the Purchase Discount Rate, minus (ii) the Discount Reserve and (b) the Maximum Purchase Limit.


"Available Funds" shall mean monies then held by or on behalf of Buyer, solely to the extent that such monies do not constitute Collections that are required to be identified or are deemed to be held by the Servicer pursuant to the Purchase Agreement for the benefit of, or required to be distributed to, the Administrative Agent or the Purchasers pursuant to the Purchase Agreement or required to be paid to the Servicer as the Servicing Fee, or otherwise necessary to pay current expenses of Buyer (in its reasonable discretion).


"Available LOC Percentage" shall mean twenty percent (20.0%); provided, that following the occurrence or during the continuation of a Termination Event, the Available LOC Percentage may be changed at any time (a) by the Administrative Agent in the Administrative Agent's sole discretion, exercised in good faith, and (b) in the case of an increase only, upon consent of the Purchasers and satisfaction of the Rating Agency Condition with respect thereto.


"Bankruptcy Code" shall mean the provisions of title 11 of the United States Code, 11 U.S.C. (S)(S) 101 et seq.


"Bergen Brunswig" shall mean Bergen Brunswig Drug Company, a California corporation.


"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.


"BH2 Designated Distribution Center" shall mean any distribution center of the Originator identified from time to time on the Designated Receivables Schedule as a "BH2 Designated Distribution Center".


"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.


"BHI" shall mean Blue Hill II, Inc., a Delaware corporation.


"Billed Amount" shall mean, with respect to any Receivable, the amount billed on the Billing Date to the Obligor thereunder.


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"Billing Date" shall mean, (a) with respect to any Receivable for which a statement is issued, the original statement date with respect to such Receivable, and (b) with respect to any Receivable for which no statement is issued, the invoice date with respect to such Receivable.


"Breakage Costs" shall have the meaning assigned to it in Section 2.10 of the Purchase Agreement.


"Bringdown Certificate" shall mean an Officer's Certificate substantially in the form of Exhibit 3.01(a)(ii) to the Purchase Agreement.


"Business Day" shall mean any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York.


"Buyer" shall mean BHI in its capacity as purchaser under the Sale and Contribution Agreement.


"Buyer Indemnified Party" shall have the meaning assigned to it in Section 7.1 of the Sale and Contribution Agreement.


"Capital Investment" shall mean, with respect to any Purchaser, as of any date of determination, the amount equal to (a) the aggregate deposits made by such Purchaser to the Seller Account and the Agent's Account pursuant to Section 2.04(b) of the Purchase Agreement on or before such date, minus (b) the aggregate amounts disbursed to such Purchaser in reduction of such Purchaser's Capital Investment pursuant to Sections 6.02, 6.03, 6.04, 6.05 or 6.06 of the Purchase Agreement on or before such date; provided, that the Capital Investment of any Purchaser shall be restored and reinstated in the amount of any reduction if at any time the amounts disbursed in reduction are rescinded or must otherwise be returned for any reason; provided, further, that references to the Capital Investment of any Purchaser who is Redwood or GE Capital shall mean an amount equal to (x) the aggregate deposits made by such Purchaser to the Seller Account and Agent's Account pursuant to Section 2.04(b) of the Purchase Agreement on or before such date, plus (y) in the case of the Committed Purchaser only, any amounts advanced by the Committed Purchaser to the Conduit Purchaser under the LAPA in respect of Capital Investment when purchasing the Conduit Purchaser's Purchaser Interests minus (z) the aggregate amounts disbursed to such Purchaser in reduction of such Purchaser's Capital Investment pursuant to Sections 6.02, 6.03, 6.04, 6.05 or 6.06 of the Purchase Agreement on or before such date.


"Capital Lease" shall mean, with respect to any Person, any lease of any property (whether real, personal or mixed) by such Person as lessee that, in accordance with GAAP, would be required to be classified and accounted for as a capital lease on a balance sheet of such Person.


"Capital Lease Obligation" shall mean, with respect to any Capital Lease of any Person, the amount of the obligation of the lessee thereunder that, in accordance with GAAP, would appear on a balance sheet of such lessee in respect of such Capital Lease.


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"Capital Purchase" shall have the meaning assigned to it in Section 2.01(c) of the Purchase Agreement.


"Capital Purchase Request" shall have the meaning assigned to it in Section 2.03(b) of the Purchase Agreement.


"Cash Management Date" shall mean the date on which the Administrative Agent has taken dominion and control over the Lockbox Accounts pursuant to Section 6.01(a)(i).


"Cash Management Event" shall mean any of the following events:


(a) the Servicer shall fail or neglect to perform, keep or observe any material provision of this Agreement or the other Related Documents (whether in its capacity as the Originator or the Servicer) and the same shall remain unremedied for two (2) Business Days or more after written notice thereof shall have been given by the Purchasers, the Purchaser Agents or the Administrative Agent to the Servicer;


(b) any representation or warranty of the Servicer herein or in any other Related Document or in any written statement, report, financial statement or certificate made or delivered by the Servicer to the Purchasers, the Purchaser Agents or the Administrative Agent hereto or thereto is untrue or incorrect in any material adverse respect as of the date when made or deemed made; provided that a breach of any representation, warranty or covenant related to the Receivables shall not be deemed a breach to the extent such Receivable has been deemed collected or adjusted in accordance with Section 3.2 of the Sale and Contribution Agreement within two Business Days after the delivery of an Investment Report evidencing such breach;


(c) a case or proceeding shall have been commenced against the Servicer seeking a decree or order in respect of any such Person (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 any such Person or for any substantial part of such Person's assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person;


(d) the Servicer 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 any such Person or for any substantial part of such Person's assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate action in furtherance of any of the foregoing;


(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, or (ii) a default or breach shall occur under any other agreement, document or instrument to which any Bergen Entity, the Seller or the Servicer is a party or by which any such Person or its property is bound that is not cured within any applicable grace period therefor, and such default or breach (A) involves the failure to make any payment when due in respect of any Debt (other than the Seller Secured Obligations) of any such Person which, except with


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respect to the Seller, is in excess of a principal amount of $25,000,000 in the aggregate, or (B) causes or permits any holder of such Debt or a trustee or agent to cause, Debt or a portion thereof which, except with respect to the Seller, is in excess of a principal amount of $25,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment;


(f) a Termination Event has occurred and is continuing; or


(g) the Parent's long-term unsecured unsubordinated indebtedness is rated less than BB- by S&P (or such rating is withdrawn or suspended) or less than Ba3 by Moody's (or such rating is withdrawn or suspended).


"Chattel Paper Agreement" shall mean a Chattel Paper Agreement executed by the Originator substantially in the form attached as Exhibit D to the Purchase Agreement.


"Chattel Paper Report" shall have the meaning set forth in Annex 5.02(a).


"Closing Date" shall mean December 20, 2000.


"Collateral Agent" shall mean GE Capital, in its capacity as collateral agent for Redwood and the Redwood Secured Parties pursuant to the Collateral Agent Agreement.


"Collateral Agent Agreement" shall mean that certain Third Amended and Restated Collateral Agent and Security Agreement dated as of March 7, 2000, among Redwood, the Depositary and GE Capital, in its capacities as (a) the Collateral Agent, (b) the Operating Agent, (c) the Liquidity Agent and (d) the Letter of Credit Agent.


"Collections" shall mean, with respect to any Receivable, all cash collections and other proceeds of such Receivable (including late charges, fees and interest arising thereon, and all recoveries with respect thereto that have been written off as uncollectible).


"Commercial Paper" shall mean those certain short-term promissory notes issued by a Purchaser from time to time in the United States of America commercial paper market.


"Commitment" shall mean, with respect to each Committed Purchaser, the maximum amount which such Purchaser is obligated to pay under the Purchase Agreement on account of all Purchases, as set forth below its signature to the Purchase Agreement or below its signature to its Assignment Agreement or its RPSA Supplement Agreement, as the case may be, as such amount may be modified in connection with a subsequent assignment pursuant to Section 14.02 of the Purchase Agreement or in connection with a reduction in the Maximum Purchase Limit pursuant to Section 2.02 of the Purchase Agreement.


"Commitment Percentage" shall mean, with respect to each Committed Purchaser within a particular Purchaser Group, such Committed Purchaser's Commitment divided by the Group Commitment of such Purchaser Group.


"Commitment Reduction Notice" shall have the meaning assigned to it in Section 2.02(a) of the Purchase Agreement.


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"Commitment Termination Notice" shall have the meaning assigned to it in Section 2.02(c) of the Purchase Agreement.


"Committed Purchaser" shall mean each Person identified as a committed purchaser on the signature pages to the Purchase Agreement or on the signature pages to any Assignment Agreement or any RPSA Supplement Agreement, as the case may be, and each such Person's permitted successors and assigns.


"Committed Purchaser Daily Yield" shall mean (a) with respect to the Committed Purchaser who is GE Capital, the GE Capital Daily Yield, and (b) with respect to each other Committed Purchaser, (i) the Committed Purchaser Daily Yield Rate for such day multiplied by (ii) such Committed Purchaser's Capital Investment outstanding on such day.


"Committed Purchaser Daily Yield Rate" shall mean, for any day during a Settlement Period, (a) with respect to the Committed Purchaser who is GE Capital, the GE Capital Daily Yield Rate, and (b) with respect to each other Committed Purchaser, the rate set forth as the Committed Purchaser Daily Yield Rate in Schedule I of such Committed Purchaser's Assignment Agreement or RPSA Supplement Agreement, as the case may be.


"Committed Purchaser Expiry Date" shall mean (a) with respect to the Committed Purchaser who is GE Capital, the fifth anniversary of the Closing Date and (b) with respect to each other Committed Purchaser, the date set forth as the "Committed Purchaser Expiry Date" on Schedule I to such Committed Purchaser's RPSA Supplement or Assignment Agreement, as the case may be, as such date may be extended in accordance with Section 2.13(a) of the Purchase Agreement from time to time.


"Concentration Discount Amount" shall mean, with respect to any Obligor, and as of any date of determination after giving effect to all Eligible Receivables to be transferred on such date, (a) the amount by which the Outstanding Balance of Eligible Receivables owing by such Obligor exceeds the larger of (i) the percentage of the Outstanding Balance of Eligible Receivable set forth in the table below based upon the short-term unsecured debt rating (or, in the absence of such rating, the equivalent long-term unsecured senior debt rating) assigned to them at such time by S&P and Moody's (and, if such Obligor is rated by both agencies and has a split rating (except for an A-1+/P-1 rating), the applicable rating will be the lower of the two) and (ii) the Special Limit, if any, applicable to such Obligor, multiplied by (b) the Outstanding Balance of all Eligible Receivables on such date.


------------------------------------------------------------------------------------------------------------ S&P RATING MOODY'S RATING ALLOWABLE % OF ELIGIBLE RECEIVABLES ------------------------------------------------------------------------------------------------------------ A-1+ P-1 10.0% ------------------------------------------------------------------------------------------------------------ A-1 P-1 8.0% ------------------------------------------------------------------------------------------------------------ A-2 P-2 6.0% ------------------------------------------------------------------------------------------------------------ A-3 P-3 3.0% ------------------------------------------------------------------------------------------------------------


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---------------------------------------------------------------------------------------------------------------------- Below A-3 or Not Rated by either S&P Below P-3 or Not Rated by either S&P 3.0% or Moody's or Moody's ----------------------------------------------------------------------------------------------------------------------


If the Special Limit for National Rx is revoked as indicated in subsection (i)(A) of the definition of "Special Limit", the Concentration Discount Amount for National Rx will be based on the Merck short-term unsecured senior debt ratings and the associated Concentration Limits in the table appearing above. If the Special Limit for National Rx is revoked as indicated in subsection (i)(B) of the definition of "Special Limit", the Concentration Discount Amount for National Rx will be based on the short-term unsecured senior debt ratings of National Rx and the associated Concentration Limits in the table appearing above. If the Special Limit for any other Obligor is revoked at any time, such Obligor's Concentration Discount Amount will be based on its short-term unsecured senior debt rating per the table above.


"Conduit Purchaser" shall mean each Person identified as a conduit purchaser on the signature pages to the Purchase Agreement or on the signature pages to any Assignment Agreement or any RPSA Supplement Agreement, as the case may be, and each such Person's permitted successors and assigns.


"Conduit Purchaser Daily Yield" shall mean (a) with respe ...