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Amended And Restated Receivables

This is an actual contract between Amerisourcebergen and General Electric Capital.

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Sectors: Biotechnology / Pharmaceuticals, Financial+Services
Governing Law: United States
Effective Date: December 20, 2002
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EXHIBIT 4.6


AMENDED AND RESTATED
RECEIVABLES PURCHASE AND SERVICING AGREEMENT


Dated as of December 20, 2002,


by and among


BLUE HILL II, INC.,
as Seller,


AMERISOURCEBERGEN DRUG CORPORATION
(as successor by merger to Bergen Brunswig Drug Company),
as Servicer,


REDWOOD RECEIVABLES CORPORATION,
as a Conduit Purchaser,


THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Conduit Purchasers,


GENERAL ELECTRIC CAPITAL CORPORATION,
as a Committed Purchaser and a Purchaser Agent


THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
as Committed Purchasers and Purchaser Agents,


and


GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


Table of Contents
-----------------


Page
---- ARTICLE I. DEFINITIONS AND INTERPRETATION .................................................................... 2
Section 1.01. Definitions ............................................................................... 2
Section 1.02. Rules of Construction ..................................................................... 2


ARTICLE II. AMOUNTS AND TERMS OF PURCHASES ................................................................... 2
Section 2.01. Purchases ................................................................................. 2
Section 2.02. Optional Changes in Maximum Purchase Limit ................................................ 3
Section 2.03. Notices Relating to Purchases and Reductions in Aggregate Capital Investment .............. 4
Section 2.04. Conveyance of Transferred Receivables ..................................................... 5
Section 2.05. Facility Termination Date ................................................................. 7
Section 2.06. Daily Yield ............................................................................... 7
Section 2.07. Fees ...................................................................................... 7
Section 2.08. Time and Method of Payments ............................................................... 7
Section 2.09. Withholding Taxes ......................................................................... 8
Section 2.10. Capital Requirements; Additional Costs .................................................... 8
Section 2.11. Breakage Costs ............................................................................ 10
Section 2.12. Purchase Excess ........................................................................... 10


ARTICLE III. CONDITIONS PRECEDENT ............................................................................ 12
Section 3.01. Conditions Precedent to the Restatement Effective Date .................................... 12
Section 3.02. Conditions Precedent to All Purchases ..................................................... 14


ARTICLE IV. REPRESENTATIONS AND WARRANTIES ................................................................... 15
Section 4.01. Representations and Warranties of the Seller .............................................. 15
Section 4.02. Representations and Warranties of the Servicer ............................................ 19


ARTICLE V. GENERAL COVENANTS OF THE SELLER ................................................................... 20
Section 5.01. Affirmative Covenants of the Seller ....................................................... 20
Section 5.02. Reporting Requirements of the Seller ...................................................... 22
Section 5.03. Negative Covenants of the Seller .......................................................... 22


ARTICLE VI. COLLECTIONS AND DISBURSEMENTS .................................................................... 24
Section 6.01. Establishment of Accounts ................................................................. 24
Section 6.02. Funding of Agent's Account ................................................................ 28
Section 6.03. Daily Disbursements From the Agent's Account; Revolving Period ............................ 30
Section 6.04. Disbursements From the Reserve Account; Settlement Date Procedures; Revolving Period ...... 31
Section 6.05. Liquidation Settlement Procedures ......................................................... 32
Section 6.06. Investment of Funds in Accounts ........................................................... 33
Section 6.07. Termination Procedures .................................................................... 33


ARTICLE VII. SERVICER PROVISIONS ............................................................................. 34
Section 7.01. Appointment of the Servicer ............................................................... 34
Section 7.02. Duties and Responsibilities of the Servicer ............................................... 34


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


i


Table of Contents
-----------------


Page
----

Section 7.03. Collections on Receivables ........................................................... 34
Section 7.04. Authorization of the Servicer ........................................................ 35
Section 7.05. Servicing Fees ....................................................................... 36
Section 7.06. Representations and Warranties of the Servicer ....................................... 36
Section 7.07. Covenants of the Servicer ............................................................ 37
Section 7.08. Reporting Requirements of the Servicer ............................................... 38


ARTICLE VIII. GRANT OF SECURITY INTERESTS ............................................................... 38
Section 8.01. Seller's Grant of Security Interest .................................................. 38
Section 8.02. Seller's Certification ............................................................... 39
Section 8.03. Consent to Assignment ................................................................ 40
Section 8.04. Delivery of Collateral ............................................................... 40
Section 8.05. Seller Remains Liable ................................................................ 40
Section 8.06. Covenants of the Seller and the Servicer Regarding the Seller Collateral ............. 41
Section 8.07. License for Use of Software and Other Intellectual Property .......................... 43


ARTICLE IX. TERMINATION EVENTS .......................................................................... 43
Section 9.01. Termination Events ................................................................... 43
Section 9.02. Events of Servicer Termination ....................................................... 48


ARTICLE X. REMEDIES ..................................................................................... 49
Section 10.01. Actions Upon Termination Event ...................................................... 49
Section 10.02. Exercise of Remedies ................................................................ 50
Section 10.03. Power of Attorney ................................................................... 50
Section 10.04. Continuing Security Interest 51


ARTICLE XI. SUCCESSOR SERVICER PROVISIONS 51
Section 11.01. Servicer Not to Resign 51
Section 11.02. Appointment of the Successor Servicer ............................................... 51
Section 11.03. Duties of the Servicer .............................................................. 51
Section 11.04. Effect of Termination or Resignation ................................................ 52


ARTICLE XII. INDEMNIFICATION ............................................................................ 52
Section 12.01. Indemnities by the Seller ........................................................... 52
Section 12.02. Indemnities by the Servicer ......................................................... 54
Section 12.03. Limitation of Damages; Indemnified Persons .......................................... 55


ARTICLE XIII. AGENTS .................................................................................... 55
Section 13.01. Authorization and Action ............................................................ 55
Section 13.02. Reliance ............................................................................ 55
Section 13.03. Notice of Termination Events ........................................................ 57
Section 13.04. Nonreliance on Administrative Agent, Purchaser Agents, Other Purchasers ............. 57
Section 13.05. Indemnification ..................................................................... 57


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


ii


Table of Contents
-----------------


Page
----

Section 13.06. Successor Agents ........................................................................ 58
Section 13.07. GE Capital and Affiliates ............................................................... 58


ARTICLE XIV. MISCELLANEOUS .................................................................................. 58
Section 14.01. Notices ................................................................................. 58
Section 14.02. Binding Effect; Assignability ........................................................... 59
Section 14.03. Termination; Survival of Seller Secured Obligations Upon Facility Termination Date ...... 62
Section 14.04. Costs, Expenses and Taxes ............................................................... 62
Section 14.05. Confidentiality ......................................................................... 64
Section 14.06. No Proceedings .......................................................................... 65
Section 14.07. Complete Agreement; Modification of Agreement ........................................... 65
Section 14.08. Amendments and Waivers .................................................................. 65
Section 14.09. No Waiver; Remedies ..................................................................... 66
Section 14.10. Governing Law; Consent To Jurisdiction; Waiver Of Jury Trial ............................ 67
Section 14.11. Counterparts ............................................................................ 68
Section 14.12. Severability ............................................................................ 68
Section 14.13. Section Titles .......................................................................... 68
Section 14.14. Limited Recourse ........................................................................ 68
Section 14.15. Further Assurances ...................................................................... 69
Section 14.16. Consent to Merger and Acknowledgement of Assignment ..................................... 70
Section 14.17. Effect on Predecessor Agreement; No Novation ............................................ 70


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


iii


EXHIBITS 2.02(a): Form of Commitment Reduction Notice 2.02(c): Form of Commitment Termination Notice 2.03(a): Form of Investment Base Certificate 2.03(b): Form of Capital Purchase Request 2.03(c): Form of Repayment Notice 2.04(a): Form of Purchase Assignment 2.04(d): Form of Purchaser Interest Reconveyance Agreement 3.01(a)(i): Form of Officer's Certificate as to Solvency (Seller/Servicer) 3.01(a)(ii)(A): Form of Officer's Closing Certificate (Seller) 3.01(a)(ii)(B): Form of Officer's Post-Closing Certificate (Seller) 3.01(a)(iii)(A): Form of Officer's Closing Certificate (Servicer) 3.01(a)(iii)(B): Form of Officer's Post-Closing Certificate (Servicer) 3.01(a)(iv): Form of Monthly Reporting 10.03: Form of Power of Attorney 14.02(b): Form of Assignment Agreement 14.08(b): Form of RPSA Supplement Agreement A: Credit and Collection Policy B-1: Form of Lockbox Account Agreement B-2: Form of Deposit Account Agreement B-3: Letter Amendment to Lockbox and Deposit Account Agreements C: Intercreditor Agreement D: Chattel Paper Agreement


ANNEXES 5.02(a): Reporting Requirements 5.02(b): Investment Reports


SCHEDULES 4.01(a): Significant Subsidiaries 4.01(i): Locations 4.01(q): Accounts


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


i


AMENDED AND RESTATED
RECEIVABLES PURCHASE AND SERVICING AGREEMENT


THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AND SERVICING AGREEMENT (the "Amended and Restated Agreement") dated as of December 20, 2002, is entered into by and among BLUE HILL II, INC., a Delaware corporation (the "Seller"), AMERISOURCEBERGEN DRUG CORPORATION (f/k/a AmeriSource Corporation), a Delaware corporation, as successor by merger to Bergen Brunswig Drug Company, a California Corporation, as servicer hereunder (in such capacity, the "Servicer"), REDWOOD RECEIVABLES CORPORATION, a Delaware corporation, as a "Conduit Purchaser", the other financial institutions from time to time party hereto as "Conduit Purchasers", "Committed Purchasers" and/or "Purchaser Agents" (each as defined herein), GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as a "Committed Purchaser", as a "Purchaser Agent" for itself and Redwood, and as administrative agent for itself, Redwood and the other Conduit Purchasers, Committed Purchasers and Purchaser Agents hereunder (in such capacity, the "Administrative Agent").


RECITALS


A. The Seller, the Servicer, Redwood as conduit purchaser, GE Capital as committed purchaser and the Administrative Agent have entered into 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, as amended by that certain Second Amendment dated as of December 21, 2001, as amended by that certain Third Amendment dated as of October 1, 2002, and as amended by that certain Fourth Amendment dated as of December 2, 2002 (collectively, the "Predecessor Agreement").


B. The Seller desires to amend and restate the Predecessor Agreement in its entirety to (i) add additional parties as "Purchasers" so that such parties may make Purchases of Purchaser Interests, (ii) increase the Maximum Purchase Limit available to the Seller, (iii) add other additional parties as "Purchaser Agents" to act as agents to the "Purchasers" in order to facilitate the Purchases and (iv) provide for the ability of the Purchasers to assign their interests from time to time (the Predecessor Agreement, as so amended and restated, and this Amended and Restated Agreement, as further amended, restated, supplemented or otherwise modified from time to time, collectively, this "Agreement").


C. The Seller and the Servicer have requested that the Predecessor Agreement be amended and restated to permit the addition of certain parties as "Purchasers" and the Seller, the Servicer, the Conduit Purchaser who is Redwood, the Committed Purchaser who is GECC and the Administrative Agent have mutually requested that Annex X be amended and restated to reflect the foregoing.


D. The Seller is a special purpose corporation owned by the Originator.


E. The Seller has been formed for the purpose of purchasing, or otherwise acquiring by capital contribution, certain designated trade receivables of the Originator.


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


1


F. The Seller intends to sell, and subject to the terms and conditions hereof, each Conduit Purchaser and Committed Purchaser intends to purchase, undivided percentage interests in such trade receivables, from time to time, as described herein.


G. The Administrative Agent has been requested and is willing to act as administrative agent on behalf of each Conduit Purchaser, Committed Purchaser and Purchaser Agent, in connection with the making and financing of such purchases.


H. In order to effectuate the purposes of this Agreement, each Conduit Purchaser, Committed Purchaser and Purchaser Agent desires to appoint the Originator to service, administer and collect the receivables acquired by the Purchasers pursuant to this Agreement and the Originator is willing to act in such capacity as the Servicer hereunder on the terms and conditions set forth herein.


AGREEMENT


NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


ARTICLE I.


DEFINITIONS AND INTERPRETATION


Section 1.01. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in Annex X.


Section 1.02. Rules of Construction. For purposes of this Agreement, the rules of construction set forth in Annex X shall govern. All Appendices hereto, or expressly identified to this Agreement, are incorporated herein by reference and, taken together with this Agreement, shall constitute but a single agreement.


ARTICLE II.


AMOUNTS AND TERMS OF PURCHASES


Section 2.01. Purchases.


(a) From and after the Closing Date and until the Facility Termination Date and subject to the terms and conditions hereof, the Seller from time to time may request that the Conduit Purchasers, or, only if a Conduit Purchaser denies such request or is unable to fund such request (and provides notice of such denial or inability to fund to the Seller, the Administrative Agent, and such Conduit Purchaser's Purchaser Agent), ratably request that such Conduit Purchaser's related Committed Purchasers, purchase Purchaser Interests (each such purchase hereunder, a "Purchase") and the Seller agrees to sell such Purchaser Interests to the Purchasers. Subject to those funds that will be deemed to be Reinvestment Purchases as described in this Section 2.01, the Conduit Purchasers who are not also Committed Purchasers are not obligated to make any Purchase, except that Redwood, in its capacity as a Conduit Purchaser, shall not


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


2


exercise its discretion to deny a request by the Seller to make a Purchase unless a Redwood Termination Date has occurred. Each Conduit Purchaser severally agrees, on the terms and conditions hereof, that if it determines, in its discretion, to make a Purchase requested of it, such Conduit Purchaser shall make available, in accordance with Section 2.04(b) hereof, an amount equal to such Conduit Purchaser's Purchaser Group's Pro Rata Share of such Purchase. Each of the Committed Purchasers severally agrees, on the terms and conditions hereof, that if a Purchase is requested of it and the Committed Purchaser Expiry Date for such Committed Purchaser has not occurred, such Committed Purchaser shall make available in accordance with Section 2.04(b) hereof, an amount equal to such Committed Purchaser's Purchaser Group's Pro Rata Share of such Purchase (and in the case of each Committed Purchaser within a particular Purchaser Group, its Commitment Percentage of its Purchaser Group's Pro Rata Share of such Purchase). Notwithstanding the foregoing, under no circumstances shall a Purchaser make any Purchase if, after giving effect thereto, a Purchase Excess would exist.


(b) Each Committed Purchaser's obligation hereunder shall be several, such that the failure of any Committed Purchaser to make a payment in connection with any Purchase hereunder shall not relieve any other Committed Purchaser of its obligation hereunder to make payment for such Purchase.


(c) Each purchase of undivided percentage ownership interests in the Transferred Receivables by the Purchasers hereunder shall consist of either (i) a purchase made by the Applicable Purchasers with new funds provided by such Purchasers (each, a "Capital Purchase") or (ii) a purchase made by the Applicable Purchasers with funds consisting of Collections allocated to the Purchaser Interests pursuant to the terms of this Agreement which does not increase the Aggregate Capital Investment or any Capital Investment (each, a "Reinvestment Purchase"). On each Business Day following the Closing Date until the Facility Termination Date, but subject to the conditions set forth in Section 3.02 hereof, each Purchaser holding a Purchaser Interest at such time shall be automatically deemed to have made a Reinvestment Purchase with the excess of (x) the proceeds of Collections in which it has a Purchaser Interest over (y) the amount to be paid pursuant to Sections 6.02(b)(i), 6.03(f), 6.03(g) and 8.06(d), except that if the Administrative Agent has taken dominion and control over the Lockbox Accounts pursuant to Section 6.01(a)(i), such Reinvestment Purchase shall be made in the amount of funds to be distributed to the Seller pursuant to Section 6.04(d).


Section 2.02. Optional Changes in Maximum Purchase Limit.


(a) So long as no Incipient Termination Event or Termination Event shall have occurred and be continuing, the Seller may, not more than four times during each fiscal year, reduce the Maximum Purchase Limit permanently; provided, that (i) the Seller shall give ten Business Days' prior written notice of a reduction, each to the Administrative Agent and to each Purchaser Agent and substantially in the form of Exhibit 2.02(a) (each such notice, a "Commitment Reduction Notice"); (ii) any partial reduction of the Maximum Purchase Limit shall be in a minimum amount of $25,000,000 or an integral multiple thereof, and (iii) no such reduction shall reduce the Maximum Purchase Limit below the Aggregate Capital Investment at the time of such reduction. Every reduction as provided for in this Section must be accompanied by payment to the Purchasers, ratably, in accordance with their respective Capital Investments, in the amount equal to the excess of the Aggregate Capital Investment over the Maximum Purchase


GE Capital Corporation/Blue Hill II, Inc.
Amended and Restated
Receivables Purchase and Servicing Agreement


3


Limit. Any reduction provided for in this Section 2.02(a) shall be applied ratably to reduce the Group Commitment of each Purchaser Group. If, after giving effect to the foregoing reduction and payment, any Group Investment is in excess of such Purchaser Group's Group Commitment, the Seller shall pay the Purchasers in such Purchaser Group, ratably, in accordance with their respective Capital Investments, the amount of such excess.


(b) [Intentionally Omitted]


(c) The Seller may at any time on at least 30 days' prior written notice by the Seller to the Administrative Agent and to each Purchaser Agent irrevocably terminate the Maximum Purchase Limit; provided, that (i) such notice of termination shall be substantially in the form of Exhibit 2.02(c) (the "Commitment Termination Notice"), and (ii) the Seller shall reduce the Aggregate Capital Investment to zero and make all payments required by Section 2.03(c) at the time and in the manner specified therein. Upon such termination, the Seller's right to request that any Purchaser make Purchases hereunder shall simultaneously terminate and the Facility Termination Date shall automatically occur.


(d) Each written notice required to be delivered pursuant to this Section 2.02 shall be irrevocable and shall be effective (i) on the day of receipt if received by the Administrative Agent and the Purchasers not later than 5:00 p.m. (New York time) on any Business Day, and (ii) on the immediately succeeding Business Day if received by the Administrative Agent and the Purchasers after such time on such Business Day or if any such notice is received on a day other than a Busine
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