SECOND AMENDMENT
----------------
THIS SECOND AMENDMENT dated as of October 6, 1998, 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 therein, and 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, the
"Parallel Asset Purchase Agreement").
B. The parties hereto desire to execute this Amendment to amend the
Parallel Asset Purchase Agreement in certain respects.
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 inserting the
following phrase immediately after the date "October 17, 1997" therein:
", and as amended as of October 6, 1998".
(b) Section 6.3 of the Parallel Asset Purchase Agreement is hereby
amended by adding the following immediately following paragraph (g) thereto:
(h) Each of the Parallel Purchasers acknowledge and agree that
the Issuer may assign a portion of its Purchased Interest
under the Receivables Purchase Agreement to an SPC Assignee.
Upon and to the extent of such assignment, (i) the SPC
Assignee shall be the owner of the assigned portion of the
Purchased Interest, (ii) Bank of America, and its successors
and assigns ("BofA") or an Affiliate thereof shall act as
Administrator for the SPC Assignee as well as for the Issuer,
with all corresponding rights and powers, express or implied,
granted to the Administrator, (iii) the SPC Assignee will
assume all obligations, if any, of the Issuer under and in
connection with the Receivables Purchase Agreement, and the
Issuer will be released from such obligations, in each case to
the extent of such assignment, and the obligations of the
Issuer and the SPC Assignee shall be several and not joint,
(iv) the SPC Assignee and any related parties will have the
benefit of all the rights and protections provided to the
Issuer and such related parties, respectively, in the
Receivables Purchase Agreement (including, without limitation,
any limitation on recourse against the Issuer or related
parties, any agreement not to file or join in the filing of a
petition to commence an insolvency proceeding against the
Issuer), (v) the defined terms and other terms and provisions
of this Agreement and the Receivables Purchase Agreement shall
be interpreted in accordance with the foregoing, and (vi) if
requested by the Administrative Agent, the parties will
execute and deliver further agreements and documents to
evidence and give effect to the foregoing. In connection with
any assignment by the Issuer of the Purchased Interest (or any
portion thereof), the Purchaser shall comply with any
applicable legal requirements, including the Securities Act of
1933, as amended.
(c) Section 6.6 of the Parallel Asset Purchase Agreement is hereby
amended by deleting the reference to "October 15, 1998" therein and substituting
a reference to "October 4, 1999" therefor.
SECTION 2. 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 3. 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 4. 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.
2
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 NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent
By:----------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a
Parallel Purchaser
By:----------------------------------
Name:
Title:
0
XXX XXXX XX XXXX XXXXXX, as a
Parallel Purchaser
By:----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as a Parallel Purchaser
By:----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a
Parallel Purchaser
By:----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK, as a
Parallel Purchaser
By:----------------------------------
Name:
Title:
WACHOVIA BANK, N.A.,
as a Parallel Purchaser
By:----------------------------------
Name:
Title:
I-4
