THIRD AMENDMENT AND CONSENT
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THIS THIRD AMENDMENT AND CONSENT dated as of October 4, 1999, is to the
AMENDED AND RESTATED PARALLEL ASSET PURCHASE AGREEMENT (as defined below), (this
"Amendment"), among O&M Funding Corp., as Seller, Xxxxx & Minor Medical, Inc.,
as Servicer, Xxxxx & Minor, Inc., as Parent and Guarantor, the Parallel
Purchasers referred to as the signature pages hereof, and Bank of America, N.A.
(f/k/a Bank of America National Trust and Savings Association), as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned thereto in the Parallel Asset Purchase
Agreement.
PRELIMINARY STATEMENTS
A. The parties hereto are parties to that certain Amended and Restated
Parallel Asset Purchase Agreement, dated as of May 28, 1996 (as amended on
October 17, 1997 and on October 6, 1998, the "Parallel Asset Purchase
Agreement").
B. The parties hereto desire to execute this Amendment to amend the
Parallel Asset Purchase Agreement in certain respects 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) Paragraph C of the Preliminary Statements to
the Parallel Asset Purchase Agreement is hereby amended by deleting the phrase
"as amended on October 17, 1997 and as amended on October 6, 1998" and
substituting the following therefor:
", as amended on October 17, 1997, October 6, 1998 and October 4,
1999".
(b) Section 6.6 of the Parallel Asset Purchase Agreement is hereby
amended by deleting the reference to "October 4, 1999" therein and substituting
a reference to "October 2, 2000" therefor.
(c) Exhibit II to the Parallel Asset Purchase Agreement is hereby
amended by adding the following immediately after clause (u) thereof:
"(v) 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."
(d) Exhibit III to the Parallel Asset 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."
(e) After giving effect to this Amendment, the Parallel Purchase
Percentage and the Maximum Parallel Purchase of each Parallel Purchaser shall be
as set forth under such Parallel Purchaser's name on Exhibit A hereto.
SECTION 2 Consents. The Administrative Agent and each Parallel
Purchaser hereby consent that, notwithstanding anything to the contrary in the
Parallel Asset Purchase Agreement or 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 B 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 Parallel Asset Purchase Agreement on or
prior to June 30, 2000. The Administrative Agent and each Parallel Purchaser
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.
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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 II to the Parallel Asset 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 Administrative Agent 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 Parallel Asset Purchase Agreement from and after the Effective Date shall be
deemed to refer to the Parallel Asset Purchase Agreement as amended hereby,
unless otherwise expressly stated. The Parallel Asset 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
Administrative Agent
By:--------------------------------------------
Name:
Title:
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BANK OF AMERICA, N.A. (f/k/a Bank of America
National Trust And Savings Association) as a
Parallel Purchaser
By:--------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Parallel
Purchaser
By:--------------------------------------------
Name:
Title:
BANK ONE, NA, as a Parallel Purchaser
By:--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Parallel Purchaser
By:--------------------------------------------
Name:
Title:
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Exhibit A
Bank America, N.A.
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Parallel Purchase Percentage: 46.666666667%
Maximum Parallel Purchase: $70,000,000
The Bank of Nova Scotia
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Parallel urchase Percentage: 33.000000000%
Maximum Parallel Purchase: $50,000,000
Bank One, NA
------------
Parallel Purchase Percentage: 13.333333333%
Maximum Parallel Purchase: $20,000,000
The Bank of New York
--------------------
Parallel Purchase Percentage: 6.666666667%
Maximum Parallel Purchase: $10,000,000
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Exhibit B
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