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Fourth Agreement To Receivables

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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 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;


FOURTH AMENDMENT TO
RPSA AND ANNEX X


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


FOURTH AMENDMENT TO
RPSA AND ANNEX X


2


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


FOURTH AMENDMENT TO
RPSA AND ANNEX X


3


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


FOURTH AMENDMENT TO
RPSA AND ANNEX X


4


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


FOURTH AMENDMENT TO
RPSA AND ANNEX X


5


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 t
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