EXHIBIT 4.3
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO SALE AND CONTRIBUTION AGREEMENT,
dated as of December 2, 2002 (this "Second Amendment") relates to that certain
Sale and Contribution Agreement dated as of December 20, 2000, between Blue Hill
and the Originator (each as defined below), as amended by the First Amendment to
Sale and Contribution Agreement dated as of October 1, 2002 (the "Sale and
Contribution Agreement"), and is entered into by and between BLUE HILL II, INC.,
a Delaware corporation ("Blue Hill") and AMERISOURCEBERGEN DRUG CORPORATION
(f/k/a Amerisource Corporation), a Delaware corporation, as successor by merger
to Bergen Xxxxxxxx Drug Company, a California corporation, the originator (in
such capacity, the "Originator"). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in 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, 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, and as amended by that certain Fourth Amendment dated as of the
date hereof ("Annex X").
W I T N E S S E T H
WHEREAS, Blue Hill and Bergen Xxxxxxxx have entered into the
Sale and Contribution Agreement pursuant to which Blue Hill has purchased BH2
Designated Receivables originated by the Originator, which are Receivables
generated by the Originator at BH2 Designated Distribution Centers;
WHEREAS, Blue Hill, the Servicer, the Administrative Agent and
the Purchasers have entered into the Purchase Agreement pursuant to which Blue
Hill has sold undivided percentage ownership interests in the BH2 Designated
Receivables and related collateral to the Purchasers;
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,
Amerisource Bergen Services Corporation as guarantor, DFC as buyer and JPMorgan
Chase as administrative agent, have entered into the ARFC/JPMorgan Purchase
Agreement, pursuant to which ARFC has sold undivided percentage ownership
interests in the ARFC Designated Receivables and related collateral to DFC;
WHEREAS, the Originator has advised that from time to time, it
intends to consolidate certain of the ARFC Designated Distribution Centers into
BH2 Designated
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
Distribution Centers and certain of the BH2 Designated Distribution Centers into
ARFC Designated Distribution Centers;
WHEREAS, Blue Hill and the Originator (collectively, the
"Parties") have mutually requested that the Sale and Contribution Agreement be
amended (the "Amendments") to permit consolidation of certain of the
Distribution Centers of Originator; and
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 Sale and Contribution Agreement. Upon the
Second Amendment Effective Date, the Sale and Contribution Agreement is hereby
amended as follows:
a. By amending Section 5.2(p) by deleting the words "as of
the Third Amendment Effective Date".
b. By deleting the penultimate and ultimate sentences of
Section 6.1(h) in their entirety and substituting the following in
their stead:
The Originator shall only add a Lockbox Account Bank, Deposit
Bank, Lockbox, Deposit Account or Lockbox Account to those
listed on Exhibit D of the Purchase Agreement (i) as permitted
under Section 8.13 hereof in connection with a Distribution
Center Consolidation or (ii) if the Buyer has consented
thereto and received notice of such addition, a copy of any
new Lockbox Agreement or Deposit Account Agreement
substantially in the form of Exhibit B-1 or B-2, respectively,
of the Purchase Agreement (with such changes as are acceptable
to the Buyer) from any new Lockbox Account Bank or Deposit
Bank. The Originator shall only terminate a Lockbox Account
Bank, Deposit Bank or Lockbox, or close a Lockbox Account, or
Deposit Account, (x) as permitted under Section 8.13 hereof in
connection with a Distribution Center Consolidation or (y)
with Buyer's consent and upon 30 days advance notice to the
Buyer and the Administrative Agent.
c. By adding the following Section 8.13 in proper
alphanumerical order:
8.13 Distribution Center Consolidation. From time to
time, the Originator may (but shall have no obligation to)
consummate Distribution Center Consolidations; provided,
however, that if the Originator proposes to consummate any
Distribution Center Consolidation, the Originator shall
provide the Buyer and the Administrative Agent with at least
60 days prior written notice detailing the proposed
consolidation (including, without
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
2
limitation, identifying the specific Distribution Centers
involved in such Distribution Center Consolidation,
identifying the Lockbox Accounts, Lockboxes and Deposit
Accounts involved in (or otherwise affected by or related to)
such Distribution Center Consolidation (including any such
Lockbox Accounts, Lockboxes and Deposit Accounts to be opened,
closed or transferred in connection therewith), identifying
the Obligors involved in (or otherwise affected by or related
to) such Distribution Center Consolidation, and setting forth
the actions proposed to be taken with respect thereto) and
specifying the proposed date of such consolidation, and such
consolidation shall be subject to satisfaction of the
following conditions precedent:
(a) No Termination Event or Incipient Termination
Event shall have occurred and be continuing or will result
after giving effect to such consolidation, and no "Termination
Event", "Servicing Default", "Potential Termination Event" or
unmatured "Servicing Default" under and as defined in the
ARFC/JPMorgan Chase Purchase Agreement shall have occurred and
be continuing or will result after giving effect to such
consolidation;
(b) All of the representations and warranties of Blue
Hill, the Originator and the Servicer contained in the Sale
and Contribution Agreement and the other Related Documents
shall be true and correct in all material respects on and as
of date of such consolidation, as if then made (other than
representations and warranties which expressly speak as of a
different date, which shall be true and correct in all
material respects as of that date);
(c) An amended and restated Designated Receivables
Schedule to reflect the Distribution Center Consolidation
shall have been prepared by the Originator and delivered to
the Administrative Agent;
(d) To the extent the Distribution Center
Consolidation provides for the consolidation of a BH2
Designated Distribution Center into an ARFC Designated
Distribution Center:
(i) the Purchasers shall have reconveyed
their Purchaser Interest in all outstanding BH2
Designated Receivables generated at such BH2
Designated Distribution Center in accordance with
Section 2.04(d) of the Purchase Agreement, the
Purchasers and the Buyer shall have executed and
delivered a Purchaser Interest Reconveyance
Agreement, and the Buyer shall have paid any amounts
due with respect thereto pursuant to Section 2.04(d)
of the Purchase Agreement;
(ii) the Administrative Agent and the Purchasers
shall have terminated or assigned each Lockbox
Account Agreement
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
3
and Deposit Account Agreement with respect to
Accounts identified on the Designated Receivables
Schedule with respect to such BH2 Designated
Distribution Center (the "Reassigned Accounts") and
the other actions and deliveries specified in Section
6.01(e) of the Purchase Agreement shall have been
completed;
(iii) the Buyer and Originator (with the consent
of the Administrative Agent) shall have executed and
delivered a Reconveyance Agreement in substance
satisfactory to the Administrative Agent, and the
Buyer shall have received the "Purchase Price" set
forth therein; and
(iv) the Administrative Agent shall have
received an Officer's Certificate of the Buyer that
the Purchase Price equals the fair market value of
the "Reassigned Receivables" (as defined in the
applicable Reconveyance Agreement);
(e) To the extent such Distribution Center
Consolidation provides for the consolidation of an ARFC
Designated Distribution Center into a BH2 Designated
Distribution Center:
(i) to the extent (A) the Outstanding Balance
of the Receivables originated at such ARFC Designated
Distribution Center are in excess of the lesser of
(x) $25,000,000 and (y) 10.0% of the Outstanding
Balance of Transferred Receivables or (B) the ratio
of (x) the Outstanding Balance of all Receivables
originated at ARFC Designated Distribution Centers
that have been consolidated into BH2 Designated
Distribution Centers, including the ARFC Designated
Distribution Center currently proposed to be
consolidated into a BH2 Designated Distribution
Center, to (y) the current Outstanding Balance of
Transferred Receivables, exceeds 15.0%, the Rating
Agency Condition shall have been satisfied with
respect to such consolidation and the Buyer and
Administrative Agent shall have completed
satisfactory due diligence with respect to the
Receivables originated at such ARFC Designated
Distribution Center;
(ii) the Buyer and the Administrative Agent
shall have received evidence satisfactory to them of
completion of the actions and deliveries required by
Section 6.01(e)(ii) of the Purchase Agreement; and
(iii) the Buyer and the Administrative Agent
shall have received satisfactory documentation
evidencing (A) the reconveyance to ARFC of DFC's
purchaser interest in the Receivables generated at
the ARFC Designated Distribution
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SALE AND CONTRIBUTION AGREEMENT
4
Center and the release of liens associated therewith, (B)
the reconveyance of the Receivables generated at the ARFC
Designated Distribution Center to the Originator and the
release of liens associated therewith, and (C) that the
conditions precedent to such Distribution Center
Consolidation have been satisfied in accordance with the
ARFC/XX Xxxxxx Xxxxx Purchase Agreement and the ASC/ARFC
Purchase Agreement;
(f) The Buyer and the Administrative Agent shall have
received an Officer's Certificate certifying (i) as to the
matters set forth in Section 8.13(a) together with a pro forma
compliance certificate setting forth the calculations (as
applicable) substantiating such certification and attaching an
Investment Base Certificate giving effect to such Distribution
Center Consolidation, (ii) among other things, as to the
matters set forth in Section 8.13(b), (iii) and attaching the
Designated Receivables Schedule delivered pursuant to Section
8.13(c), and (iv) as to the truth and accuracy of the matters
set forth in Section 8.13(d) or (e), as applicable;
(g) The Buyer and the Administrative Agent shall have
received a receivables aging report with respect to the
Receivables generated at the Distribution Center being
consolidated into a surviving Distribution Center, in form and
substance satisfactory to the Buyer and the Administrative
Agent (which report the Administrative Agent shall provide to
the Rating Agencies, together with a copy of the notice
delivered pursuant to the first paragraph of this Section
8.13);
(h) Without limiting Section 8.13(d)(ii) or (e)(ii), not less
than 5 days prior to the date of such Distribution Center
Consolidation, the Buyer and the Administrative Agent shall
have received evidence (in form and substance satisfactory to
each of them) demonstrating that appropriate actions have been
taken and procedures established (all of which actions and
procedures must be satisfactory to the Buyer and the
Administrative Agent) to prevent (after giving effect to such
Distribution Center Consolidation) the commingling of
Collections in respect of Transferred Receivables with those
of any other Receivables in any Lockbox Account, Lockbox or
Deposit Account; and
(i) The Buyer and the Administrative Agent shall have
received such additional documentation as the Buyer or
Administrative Agent may reasonably request.
d. By adding Exhibit 8.13(b) in the form and substance of
Annex I, attached hereto and made a part hereof.
3. Representations and Warranties of the Originator and the
Servicer. Each of the Originator and the Servicer represents and warrants to
Blue Hill that, as of the Second Amendment Effective Date and after giving
effect to this Second Amendment:
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
5
a. All of the representations and warranties of the Originator
and the Servicer contained in this Second Amendment, the Sale and
Contribution Agreement and the other Related Documents are true and
correct in all material respects on and as of the Second Amendment
Effective Date, as if then made (other than representations and
warranties which expressly speak as of a different date, which shall
be true and correct in all material respects as of that date); and
b. No Termination Event or Incipient Termination Event has
occurred and is continuing or will result after giving effect to this
Second Amendment.
4. Effective Date. This Second Amendment shall become effective as
of the date first written above (the "Second Amendment Effective Date") upon the
satisfaction of each of the following conditions:
a. Blue Hill shall have received each of the following
documents, in each case in form and substance satisfactory to Blue
Hill and the Administrative Agent:
i. counterparts hereof executed by each of the Parties;
ii. satisfactory evidence of the effectiveness of the
Fourth Amendment to the Receivables Purchase Agreement and Annex
X, dated as of the date hereof, among, Blue Hill, the Servicer,
the Administrative Agent and the Purchasers, together with
delivery of an execution copy thereof and of the other documents
delivered in connection therewith;
iii. a certificate of an officer of the Originator
attesting to the solvency of Originator;
iv. a certificate of an officer of the Originator
certifying, among other things, that the representations and
warranties contained in the Related Documents are correct as of
the date hereof;
v. a certificate of the Secretary or Assistant Secretary
of the Originator certifying no change in the certificate of
incorporation of the Originator and bylaws of the Originator, and
certifying and attaching resolutions authorizing the Second
Amendment and an incumbency certificate;
vi. tax and good standing certificates of the Seller in
the states of California, Pennsylvania and Delaware;
vii. tax and good standing certificates of the Originator
in the state of California, Pennsylvania and Delaware;
viii. a legal opinion as to true sale and substantive
consolidation matters delivered by Dechert after giving effect to
the Second Amendment;
ix. a legal opinion as to security interests,
enforceability, corporate matters and non-contravention delivered
by Dechert, and in addition, a legal
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
6
opinion delivered by the in-house counsel of the Originator and Buyer,
both, after giving effect to the Second Amendment;
x. such additional documentation as the Buyer may reasonably
request;
b. No law, regulation, order, judgment or decree of any Governmental
Authority shall, and no Party shall have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain the consummation of the transactions contemplated by this Second
Amendment, except for such laws, regulations, orders or decrees, or pending
or threatened litigation, that in the aggregate could not reasonably be
expected to have a Material Adverse Effect;
c. All of the representations and warranties of Blue Hill and the
Servicer contained in this Second Amendment and the other Related Documents
shall be true and correct in all material respects on and as of the Second
Amendment Effective Date, as if then made (other than representations and
warranties which expressly speak as of a different date, which shall be
true and correct in all material respects as of that date);
d. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Second Amendment shall be satisfactory in all respects
in form and substance to the Buyer; and
e. No Termination Event or Incipient Termination Event shall have
occurred and be continuing on the Second Amendment Effective Date or will
result after giving effect to this Second Amendment.
5. Reference to and Effect on the Related Documents
a. Upon the Second Amendment Effective Date, (i) each reference in
the Sale and Contribution Agreement to "this Agreement", "hereunder",
"hereof" or words of like import, and each reference in the Related
Documents to the Sale and Contribution Agreement shall mean and be a
reference to the Sale and Contribution Agreement as amended and
supplemented hereby.
b. Except to the extent specifically set forth herein, the
respective provisions of the Sale and Contribution Agreement and the other
Related Documents shall not be amended, modified, waived, impaired or
otherwise affected hereby, and such documents and the Obligations under
each of them are hereby confirmed as being in full force and effect.
c. This Second Amendment shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment or
waiver of any other term or condition of the Sale and Contribution
Agreement or any other Related Document, (ii) prejudice any right or rights
which any of the Parties, the Administrative Agent or the Purchasers may
now have or may have in the future under or in connection with the Sale and
Contribution Agreement or any other Related Document, (iii) require any of
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
7
the Parties, the Administrative Agent or the Purchasers to agree to a
similar transaction on a future occasion or (iv) create any right herein to
another Person or other beneficiary or otherwise, except to the extent
specifically provided herein.
6. Miscellaneous. This Second Amendment is a Related Document. The
headings herein are for convenience of reference only and shall not alter or
otherwise affect the meaning hereof.
7. Section Titles. The Section titles in this Second Amendment are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
8. Counterparts. This Second Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
9. GOVERNING LAW. THIS SECOND AMENDMENT, AND ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Second Amendment. In the event an ambiguity
or question of intent or interpretation arises, this Second Amendment shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Second Amendment.
* * * *
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
8
IN WITNESS WHEREOF, Blue Hill and the Originator have caused this
Second Amendment to be executed by their respective officers thereunto duly
authorized as of the date first above written.
BLUE HILL II, INC.,
as Buyer
By: _________________________
Name:
Title:
AMERISOURCEBERGEN DRUG CORPORATION,
a Delaware corporation,
as successor by merger to Bergen
Xxxxxxxx Drug Company, a California
corporation as Originator and as
Servicer
By: _________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: _________________________
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
WITH THE CONSENT OF:
XX XXXXXX XXXXX BANK,
as Administrative Agent under the ARFC/JPMorgan
Chase Purchase Agreement
By: _________________________
Name:
Title:
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
ANNEX I
Exhibit 8.13(b)
(see attached)
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
EXHIBIT 8.13(b)
FORM OF
RECONVEYANCE AGREEMENT
THIS RECONVEYANCE AGREEMENT (this "Agreement") is made and entered
into as of [INSERT DATE], between BLUE HILL II, INC., a Delaware corporation
(the "Buyer") and AMERISOURCEBERGEN DRUG CORPORATION (f/k/a Amerisource
Corporation), a Delaware corporation, as successor by merger to Bergen Xxxxxxxx
Drug Company, a California corporation (the "Originator"). All capitalized terms
not otherwise defined herein shall have the meanings ascribed to such terms in
Annex X to the Sale Agreement (as defined below).
Statement of Facts
Pursuant to that certain Sale and Contribution Agreement, dated as of
December 20, 2000, between the Buyer and the Originator, as amended by that
certain First Amendment to Sale and Contribution Agreement, dated as of October
1, 2002, and as amended by that certain Second Amendment to Sale and
Contribution Agreement, dated as of December 2, 2002 (as amended, restated
supplemented or otherwise modified from time to time, the "Sale Agreement"), the
Buyer has purchased from time to time from the Originator certain trade
receivables (and related rights thereto) generated by the Originator at BH2
Designated Distribution Centers.
The Originator has given notice to the Buyer of the Originator's
intent to consolidate the Consolidating Location (defined below) into an ARFC
Designated Distribution Center in accordance with Section 8.13 of the Sale
Agreement and, in connection therewith, to repurchase from the Buyer all
outstanding BH2 Designated Receivables with respect to the Consolidating
Location (as set forth in Schedule II hereto, or in satisfactory form as is
acceptable to the Buyer, the "Reassigned Receivables") and have the Buyer
release its security interests therein.
Statement of Terms
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Distribution Center Consolidation. On the date hereof, the Originator
will consolidate the BH2 Designated Distribution Center located at [insert
location details here] (the "Consolidating Location") into the ARFC Designated
Distribution Center located at [insert location details here]. On the date
hereof, the Designated Receivables Schedule is hereby amended to provide that
the Consolidating Location is not a "BH2 Designated Distribution Center" but is
an "ARFC Designated Distribution Center". As of the date hereof, the Outstanding
Balance of the Reassigned Receivables is $[___________] (the "Reassigned
Receivables Outstanding Balance").
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
2. Reconveyance by Buyer.
a. In connection with the Distribution Center Consolidation detailed
in Paragraph 1 above, and subject to the terms and conditions of this
Agreement, the Buyer hereby sells, assigns, transfers, and conveys to the
Originator without recourse, and the Originator hereby accepts, purchases
and receives, all of the Buyer's rights, titles and interests in and to the
Reassigned Receivables. In consideration of the Buyer's transfer and
conveyance hereunder to the Originator of the Reassigned Receivables, the
Originator shall pay a purchase price in an amount equal to the "Purchase
Price" that would be applicable under the Sale Agreement if such Reassigned
Receivables were "Sold Receivables" (each as defined in Annex X) (the
"Purchase Price"), to be paid as set forth on Schedule I hereto either in
cash and/or in the form of a reduction of the subordinated debt owing by
the Buyer to the Originator, if any, which Purchase Price represents the
fair market value of the Reassigned Receivables as of the date hereof.
b. Subject to the terms and conditions of this Agreement, the Buyer
hereby releases and terminates all security interests or other rights or
interests that the Buyer may have in (i) the Reassigned Receivables, (ii)
the Originator's rights in the merchandise (including returned goods)
relating to the Reassigned Receivables, (iii) all Reassigned Accounts, (iv)
any other Originator Collateral to the extent relating to the foregoing,
and (v) all proceeds, substitutions and replacements for each of the
foregoing (the "Released Security Interest").
3. Effectiveness of this Agreement. This Agreement shall be effective as
of the date hereof upon receipt by the Administrative Agent of counterparts of
this Agreement executed by each of the other parties hereto.
4. Further Assurances. The Buyer hereby agrees to execute and deliver
such UCC amendment financing statements and such other documents as the
Originator may reasonably request from time to time in order to more fully
effectuate the transactions contemplated by this Agreement (including, without
limitation, those necessary to terminate or assign Lockbox Account Agreements
and Deposit Account Agreements); provided, however, that any and all such
financing statements and other documents shall be prepared and/or recorded at
the Originator's expense.
5. Representations and Warranties. Each of the parties hereto represents
and warrants that it has the full corporate or other power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and
that this Agreement has been duly and validly executed and delivered by it (and
assuming the due and valid execution and delivery hereof by all other parties
hereto) constitutes a legal, valid and binding obligation of such party
enforceable against it in accordance with its terms.
6. Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement may be executed in any number
of
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
several counterparts, and each such counterpart shall constitute an original and
all such counterparts together shall constitute one and the same instrument. The
delivery of an executed counterpart hereof by facsimile shall constitute
delivery of an executed counterpart hereof.
* * *
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
IN WITNESS, each of the parties hereto, by their respective duly
authorized signatories, has executed and delivered this Agreement as of the date
first above written.
AMERISOURCEBERGEN DRUG CORPORATION,
a Delaware corporation,
as successor by merger to Bergen
Xxxxxxxx Drug Company, a California
corporation, as Originator
____________________________________
Name:
Title:
BLUE HILL II, INC.,
as Buyer
____________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
_____________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
SCHEDULE I
Purchase Price
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Outstanding Balance of Fair Market Value Reduction to Subordinated Cash
---------------------- ----------------- ------------------------- ----
Reassigned Receivables (as a percentage) Note
---------------------- ----------------- ----
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SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
SCHEDULE II
Reassigned Receivables
SECOND AMENDMENT TO
SALE AND CONTRIBUTION AGREEMENT
