THIRD AMENDMENT AND CONSENT TO RECEIVABLES PURCHASE AGREEMENT
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THIS THIRD AMENDMENT AND CONSENT dated as of October 4, 1999 to the
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as defined below), (this
"Amendment"), is among O&M Funding Corp., as Seller, Xxxxx & Minor Medical,
Inc., as Servicer, Xxxxx & Minor, Inc., as Parent and Guarantor, Receivables
Capital Corporation, as Issuer, and Bank of America, N.A. (f/k/a Bank of America
National Trust and Savings Association), as Administrator. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Receivables Purchase Agreement.
PRELIMINARY STATEMENTS
A. Seller, Servicer, Parent and Guarantor, Issuer and Administrator are
parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of May 28, 1996 (as amended on October 17, 1997 and on October 6, 1998,
the "Receivables Purchase Agreement").
B. Seller, Servicer, Parent and Guarantor, Issuer and Administrator
desire to amend the Receivables Purchase Agreement in certain respects as set
forth herein and to consent to certain matters described herein.
NOW, THEREFORE, in consideration of the foregoing 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. (a) Exhibit I to the Receivables Purchase Agreement
is hereby amended as follows:
(i) clause (i) of the definition of "Alternate Rate" is hereby amended in
its entirety to read in full as set forth below:
"(i) the Eurodollar Rate for such Fixed Period plus 0.25% plus the
appropriate spread for such date determined by reference to the Pricing
Grid Rate or",
(ii) the definition of "Facility Termination Date" is amended by
deleting clauses (a) and (b) thereof and substituting the following therefor:
"(a) October 2, 2000, (b) the Purchase Termination Date, as defined in the
Amended and Restated Liquidity Asset Purchase Agreement, which as of
October 4, 1999, is October 2, 2000, or such later date designated as the
Purchase Termination Date from time to time pursuant to the Amended and
Restated Liquidity Asset Purchase Agreement (it being understood that the
Administrator shall notify the Servicer of the designation of such later
date, provided that failure to provide such notice shall not limit or
otherwise affect the obligations of the Servicer or the rights of the
Administrator, the Issuer, or any other party to the Amended and Restated
Liquidity Asset Purchase Agreement), "
(b) Exhibit III to the Receivables Purchase Agreement is hereby amended
by adding the following immediately after clause (v) thereof:
"(u) Year 2000. It has reviewed the areas within its and its subsidiaries'
businesses and operations which would reasonably be expected to be
adversely affected by, and has developed or is developing a program to
address on a timely basis, the "Year 2000 Problem" (that is, the risk that
computer applications used by it or its subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving certain
dates prior to and any date on or after December 31, 1999), and has made
related appropriate inquiry of material suppliers and vendors. Based on
such review, program and inquiry, it believes that the "Year 2000 Problem"
will not have a material adverse effect on its business and operations or
on its ability to perform its obligations under the Agreement or the other
Transaction Documents or the collectibility of the Receivables."
(c) Exhibit V to the Receivables Purchase Agreement is hereby amended
by adding the following immediately after clause (p) thereof:
"(q) Year 2000 Procedures. It will (i) review the areas within its and its
subsidiaries' businesses and operations which would reasonably be expected
to be adversely affected by, and will develop and implement a program to
address on a timely basis, the Year 2000 Problem, and will make related
appropriate inquiry of material suppliers and vendors and (ii) notify the
Administrator and the Issuer if at any time it has any reason to believe
(including information derived from a management letter or other
communication from an auditor, regulator or third party consultant) that
the "Year 2000 Problem" could reasonably be expected to have a material
adverse effect on its business and operations or on its ability to perform
its obligations under the agreement or under the other Transaction
Documents or the collectibility of the Receivables."
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SECTION 2. Consents. The Issuer and Administrator hereby consent that,
notwithstanding anything to the contrary in the Receivables Purchase Agreement,
the aging of the Medix Receivables will be determined as set forth in the letter
from O&M Medical attached hereto as Exhibit A for purposes of categorizing such
Medix Receivables as Defaulted Receivables and Delinquent Receivables in each
Seller Report and any other report or certificate delivered by the Servicer or
the Seller pursuant to the terms of the Receivables Purchase Agreement on or
prior to June 30, 2000. The Issuer and the Administrator hereby consent to the
deposit of Collections on Medix Receivables into an account other than a Lockbox
Account until October 31, 1999. "Medix Receivables" mean Receivables generated
by O&M Medical through the operation of the assets of Medix, Inc. which were
acquired by it on July 30, 1999.
SECTION 3. Representations and Warranties. Each of the Seller and the
Servicer hereby represents and warrants that (i) the representations and
warranties made by it set forth in Exhibit III to the Receivables Purchase
Agreement, after giving effect to this Amendment, are correct on and as of the
Effective Date (defined below) as though made on and as of the Effective Date
and shall be deemed to have been made on such Effective Date and (ii) no event
has occurred and is continuing, or would result from this Amendment, which
constitutes a Termination Event or an Unmatured Termination Event.
SECTION 4. Effectiveness. This Amendment shall be deemed effective as
of the date on which the Administrator shall have received a copy of this
Amendment duly executed by each of the parties hereto (such date, the "Effective
Date").
SECTION 5. Miscellaneous. This Amendment may be executed in any number
of counterparts, and by the different parties on separate counterparts, each of
which shall constitute an original, but all of which together shall constitute
one and the same agreement. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of New York. Any reference to
the Receivables Purchase Agreement from and after the Effective Date shall be
deemed to refer to the Receivables Purchase Agreement as amended hereby, unless
otherwise expressly stated. The Receivables Purchase Agreement, as amended
hereby, remains in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective duly authorized officers as of the date and
year first written.
O&M FUNDING CORP., as Seller
By:-----------------------------------------
Name:
Title:
XXXXX & MINOR MEDICAL, INC.,
as Servicer
By:-----------------------------------------
Name:
Title:
XXXXX & MINOR, INC.,
as Parent and Guarantor
By:-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A. (f/k/a Bank of America
National Trust and Savings Association), as
Administrator
By:-----------------------------------------
Name:
Title:
RECEIVABLES CAPITAL CORPORATION, as Issuer
By:-----------------------------------------
Name:
Title:
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Exhibit A
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