Exhibit 10
AMENDMENT NO. 1
Dated as of July 12, 2001
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of July 12,
2001 by and among O&M FUNDING CORP., a Virginia corporation (the "Seller"),
XXXXX & MINOR, INC., a Virginia corporation (the "Parent"), XXXXX & MINOR
MEDICAL, INC., a Virginia corporation (the "Servicer" and together with the
Seller and the Parent, the "Seller Parties" and each a "Seller Party"), the
funding entities party hereto as Financial Institutions (the "Financial
Institutions"), FALCON ASSET SECURITIZATION CORPORATION ("Falcon"), RECEIVABLES
CAPITAL CORPORATION ("RCC"), and LIBERTY STREET FUNDING CORP. ("Liberty Funding"
and together with Falcon and RCC, collectively the "Conduits", and together with
the Financial Institutions, the "Purchasers"), BANK ONE, NA, BANK OF AMERICA,
NATIONAL ASSOCIATION and THE BANK OF NOVA SCOTIA (each, a "Managing Agent" and
collectively, the "Managing Agents") and BANK ONE, NA, as collateral agent for
the Purchasers (the "Collateral Agent").
PRELIMINARY STATEMENT
A. The parties hereto are parties to that certain Receivables
Purchase Agreement dated as of July 14, 2000 (as the same may be further
amended, restated, supplemented or otherwise modified from time to time, the
"RPA"). Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the RPA.
B. The parties hereto have agreed to amend the RPA subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the RPA. Effective as of the date hereof,
subject to the satisfaction of the conditions precedent set forth in Section 2
below, the RPA is hereby amended as follows:
1.1 Clause (ii) of Section 9.1(j) of the RPA is hereby deleted in its
entirety and replaced with the following therefor:
(ii) Consolidated Net Worth. Consolidated Net Worth shall be less
than the sum of (A) $267,000,000 plus (B) as of the end of each fiscal
quarter beginning with the fiscal quarter ended March 31, 2000, an
amount equal to fifty percent (50%) of Consolidated Net Income (to the
extent positive) for such fiscal quarter, such increases to be
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cumulative, plus (C) an amount equal to one hundred percent (100%) of
the net proceeds from Equity Transactions occurring after the Closing
Date, minus (D) the amount of any payments made by the Borrower to
repurchase Junior Subordinated Debentures.
1.2 Exhibit I to the RPA is hereby amended by deleting the phrase
"July 12, 2001" appearing in the definition of "Liquidity Termination Date" and
substituting "July 11, 2002" therefor.
SECTION 2. Conditions Precedent. This Amendment shall become
effective and be deemed effective as of the date first above written upon the
Collateral Agent's having received counterparts of this Amendment duly executed
by each party hereto.
SECTION 3. Covenants, Representations and Warranties of Seller
Parties.
3.1 Upon the effectiveness of this Amendment, each Seller Party
hereby reaffirms all covenants, representations and warranties made by it, to
the extent the same are not amended hereby, in the RPA and agrees that all such
covenants, representations and warranties shall be deemed to have been re-made
as of the effective date of this Amendment.
3.2 Each Seller Party hereby represents and warrants (i) that this
Amendment constitutes the legal, valid and binding obligation of such Seller
Party enforceable against such Seller Party in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general principles of equity which may limit the availability of
equitable remedies and (ii) upon the effectiveness of this Amendment, no event
shall have occurred and be continuing which constitutes an Amortization Event or
a Potential Amortization Event.
SECTION 4. Reference to and Effect on the RPA.
4.1 Upon the effectiveness of this Amendment, each reference in the
RPA to "this Agreement," "hereunder," "hereof," "herein," "hereby" or words of
like import shall mean and be a reference to the RPA as amended hereby, and each
reference to the RPA in any other document, instrument or agreement executed
and/or delivered in connection with the RPA shall mean and be a reference to the
RPA as amended hereby.
4.2 Except as specifically amended hereby, the RPA and other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy under the RPA or any
of the other Transaction Documents, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
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SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. Headings. Section headings in this Amendment are included
herein for convenience or reference only and shall not constitute a part of this
Amendment for any other purpose.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereto duly authorized as of the date
first written above.
O&M FUNDING CORP.
By:________________________
Name:
Title:
XXXXX & MINOR MEDICAL, INC.
By:________________________
Name:
Title:
XXXXX & MINOR, INC.
By:________________________
Name:
Title:
FALCON ASSET SECURITIZATION CORPORATION
By:________________________
Name:
Title:
BANK ONE, NA, as a Financial Institution in the
Falcon Purchase Group, a Managing Agent and as
Collateral Agent
By:________________________
Name:
Title:
RECEIVABLES CAPITAL CORPORATION
By:________________________
Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION, as a
Financial Institution in the RCC Purchase Group
and a Managing Agent
By:________________________
Name:
Title:
LIBERTY STREET FUNDING CORP.
By:________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Financial
Institution in the Liberty Funding Purchase Group
and a Managing Agent
By:________________________
Name:
Title:
