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EXHIBIT 00-X
XXXXXX XXXXXXXXX
Dated as of September 30, 1995
THIS FOURTH AMENDMENT (this "Fourth Amendment") is entered
into among FOXMEYER CORPORATION (formerly FoxMeyer Acquisition Corp., the
successor in interest by merger to FoxMeyer Corporation), a Delaware
corporation (the "Seller"), CORPORATE ASSET FUNDING COMPANY, INC., a Delaware
corporation ("CAFCO"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation
("Enterprise" and, together with CAFCO, the "Investors" and individually an
"Investor"), CITIBANK, N.A., a national banking association ("Citibank"),
NATIONSBANK, N.A., a national banking association, individually ("NationsBank")
and as co-agent (the "Co-Agent"), CITICORP NORTH AMERICA, INC., individually
("CNAI") and as agent the ("Agent"), and the other financial institutions
listed on the signature pages hereof under the heading "A Syndicate Banks" (the
"A Syndicate Banks") or "B Syndicate Banks", respectively (the "B Syndicate
Banks" and, together with Citibank, NationsBank and the A Syndicate Banks, the
"Banks").
PRELIMINARY STATEMENTS. (1) The Seller, the Investors, the
Agent and the Co-Agent are party to that certain Trade Receivables Purchase and
Sale Agreement dated as of October 29, 1993, as amended by the Amendment dated
as of October 27, 1994, the Second Amendment dated as of November 22, 1994 and
the Third Amendment dated as of April 26, 1995 (said Agreement as so amended
being the "Investor Agreement"). The Seller, the Banks, the CNAI, the Agent
and the Co-Agent are party to that certain Trade Receivables Purchase and Sale
Agreement dated as of October 29, 1993, as amended by the Amendment dated as of
October 27, 1994, the Second Amendment dated as of November 22, 1994 and the
Third Amendment dated as of April 26, 1995 (said Agreement as so amended being
the "Parallel Purchase Commitment" and, together with the Investor Agreement,
the "Agreements"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the respective Agreements.
(2) The Seller, the Investors, Citibank, NationsBank, the
other Banks, CNAI, the Agent and the Co-Agent, on the terms and conditions
stated below, have agreed to amend certain financial covenants contained in the
Agreements.
SECTION 1. Amendments to the Investor Agreement. The
Investor Agreement is, effective as of the date hereof and subject to the
satisfaction of the condition precedent set forth in Section 3 hereof, hereby
amended as follows:
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(a) The definitions of the terms "Applicable Coverage Ratio",
"Credit Agreement", "Development Cost Debt Service Coverage Ratio Adjustment
Amount", "Development Cost Interest Coverage Ratio Adjustment Amount", "Funded
Debt" and "Funded Debt Service", contained in Section 1.01 thereof, are amended
in their entirety to read as follows, respectively:
"Applicable Coverage Ratio" means, as of any date,
the ratio of (a)(i) EBIT, plus (ii) amortization and depreciation
expense, plus (iii) the Development Cost Interest Coverage Ratio
Adjustment Amount, plus (iv) the Phar-Mor Interest Coverage Ratio
Adjustment Amount, plus (v) the CareStream EBT Adjustment Amount,less
(vi) CareStream D&A Adjustment Amount, of the Seller and its
Consolidated Subsidiaries for the 12 month period ended on such date,
to (b)(i) Interest Expense, less (ii) the CareStream Interest Expense
Adjustment Amount, plus (iii) interest income then being currently
received (to the extent such income is netted against interest charges
in the definition of "Interest Expense"), for such 12 month period.
"Credit Agreement" means the Amended and Restated
Loan Agreement dated as of April 29, 1993, as amended by the First
Amendment to Amended and Restated Loan Agreement dated as of October
18, 1993, the Second Amendment to Amended and Restated Loan Agreement
dated as of June 20, 1994, the Third Amendment to Amended and Restated
Loan Agreement dated as of August 26, 1994, the Fourth Amendment to
Amended and Restated Loan Agreement dated as of November 22, 1994, the
Fifth Amendment to Amended and Restated Loan Agreement dated as of
April 26, 1995, the Sixth Amendment to Amended and Restated Loan
Agreement dated as of August 17, 1995, and the Seventh Amendment to
Amended and Restated Loan Agreement dated as of September 30, 1995,
among the Seller as Borrower, each Selling Subsidiary as Guarantors,
the Lenders and Issuer referred to therein, and Citicorp USA, Inc. as
Administrative Agent and NationsBank of Texas, N.A. and Banque Paribas
as Co-Agents, as further amended, supplemented or otherwise modified
from time to time."
"Development Cost Debt Service Coverage Ratio
Adjustment Amount" means, as of any date of determination, the
aggregate amount of any reduction of Operating Cash Flow attributable
to any write-off of previously capitalized computer software
development costs or any write-off of the costs of, or loss on the
disposition of, replaced computer software and related hardware, but
excluding any such reduction in respect of the CareStream Operations;
provided that the aggregate amount of the Development Cost Debt
Service Coverage Ratio Adjustment Amount utilized during any period of
12 months shall not exceed $5,000,000 (prior to any adjustment for
income taxes).
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"Development Cost Interest Coverage Ratio Adjustment
Amount" means, as of any date of determination, the aggregate amount
of any reduction of EBIT attributable to any write-off of previously
capitalized computer software development costs or any write-off of
the costs of, or loss on the disposition of, replaced computer
software and related hardware, but excluding any such reduction in
respect of the CareStream Operations;provided that the aggregate
amount of the Development Cost Interest Coverage Ratio Adjustment
Amount utilized during any period of 12 months shall not exceed
$5,000,000 (prior to any adjustment for income taxes).
"Funded Debt" means, as of the date of any
determination, the sum of the following (without duplication): (a)
all Debt evidenced by the Notes (as defined in the Credit Agreement)
for the B Borrowing Account (as defined in the Credit Agreement) as of
such date, (b) all Debt evidenced by the 7.09% Notes (as defined in
the Credit Agreement) as of such date, (c) all Debt consisting of
Subordinated Debt (as defined in the Credit Agreement) as of such
date, (d) all Debt which would be classified as "funded debt" or
"long-term debt", including the current portions thereof, on a
consolidated balance sheet of the Seller and its Consolidated
Subsidiaries prepared as of such date in accordance with GAAP, (e) all
Debt of the Seller or any Consolidated Subsidiary having a final
maturity (or which is renewable or extendible at the option of the
obligor for a period ending) more than one year after the date of
creation thereof, notwithstanding that payments in respect thereof are
required to be made by the obligor less than one year after the date
of the creation thereof or that any amount thereof is at the time
included also in Current Liabilities (as defined in the Credit
Agreement) of such obligor, (f) all Debt of the Seller or any
Consolidated Subsidiary outstanding under a revolving credit or
similar agreement providing for borrowings (and renewals and
extensions thereof) over a period of more than one year,
notwithstanding that any such Debt is created within one year of the
expiration of such agreement, (g) the present value (discounted at the
implicit rate, if known, or ten percent (10%) per annum otherwise) of
all obligations in respect of Capital Leases of the Seller or any
Consolidated Subsidiary and (h) Redeemable Capital Stock of the Seller
valued at the greater of its voluntary or involuntary maximum fixed
repurchase or redemption price plus accrued and unpaid dividends. For
purposes hereof, the "maximum fixed repurchase or redemption price" of
any Redeemable Capital Stock which does not have a fixed repurchase or
redemption price shall be calculated in accordance with the terms of
such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased or redeemed on any date on which Funded Debt shall be
required to be determined, and if such price is based upon, or
measured by, the fair market value of such Redeemable Capital Stock,
such fair market value to be determined in good faith by the Board of
Directors of the issuer of such Redeemable Capital Stock.
Notwithstanding the foregoing, Funded Debt shall be deemed not to
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include Indebtedness under the Overline Facility, which is due and
payable not later than March 31, 1996.
"Funded Debt Service" means, with respect to the
Seller and its Consolidated Subsidiaries, for any period, the sum of
(a) the aggregate of all principal and interest payments and
repurchase or redemption payments required or scheduled to be made
during such period with respect to Funded Debt, (b) interest payments
required to be made during such period with respect to Debt under the
Overline Facility and (c) Preferred Dividends accruing or payable
during such period.
(b) Section 1.01 of the Investor Agreement is amended by
adding thereto the following new definitions, to be added in the applicable
alphabetical order:
"CareStream D&A Adjustment Amount" means, for each
date of determination after the CareStream Operations shall have been
first accounted for as a discontinued operation of the Seller in
accordance with GAAP, the amounts in respect of depreciation and
amortization allocated to the CareStream Operations in accordance with
GAAP for the 12 month period ending on such date of determination.
"CareStream Debt Service Adjustment Amount" means,
for each date of determination after the CareStream Operations shall
first have been accounted for as a discontinued operation of the
Seller in accordance with GAAP, the principal and interest payments
allocated to or paid directly by the CareStream Operations in
accordance with GAAP for the 12 month period ending on such date of
determination.
"Carestream EBT Adjustment Amount" means, for each
date of determination after the CareStream Operations shall have been
first accounted for as a discontinued operation of the Seller in
accordance with GAAP, an amount equal to the loss of the Seller before
provision for income taxes allocated to the CareStream Operations in
accordance with GAAP for the 12 month period ending on such date of
determination.
"Carestream Interest Expense Adjustment Amount"
means, for each date of determination after the CareStream Operations
shall have been first accounted for as a discontinued operation of the
Seller in accordance with GAAP, the Interest Expense allocated to or
paid directly by the CareStream Operations in accordance with GAAP for
the 12 month period ending on such date of determination.
"Carestream Net Income Adjustment Amount" means, for
each date of determination after the CareStream Operations shall have
been first accounted for as a discontinued operation of the Seller in
accordance with GAAP, the loss (after income
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taxes) of the Seller allocated to the CareStream Operations in
accordance with GAAP for the 12 month period ending on such date of
determination.
"Carestream Operations" means, the operations
conducted by Healthcare Connect, Inc. and its Subsidiaries,
principally providing healthcare administration and management
services, together with (a) the assets of Healthcare Connect, Inc. and
its Subsidiaries, (b) the assets purchased by the Seller and/or
FoxMeyer Drug Company from the chapter 11 estate of Synercom
Healthcare Systems, Inc. on or about February 8, 1995 and (c) the
assets (consisting principally of hardware and software) used in the
operation of the DataNet division of the Seller and/or FoxMeyer Drug
Company, but excluding all shares of capital stock of FoxMeyer Canada.
"Overline Facility" means any agreement to be entered
into among the Seller, Operating Subsidiaries, the lenders named
therein and Citicorp USA, Inc., as Administrative Agent, providing a
working capital facility in the aggregate principal amount of up to
$60,000,000, and all Guaranties and other documents related thereto,
as such agreement, Guaranties and other documents may be amended,
replaced, supplemented or otherwise modified from time to time.
(c) Paragraph (iii) of Section 5.03(h) (concerning Interest
Coverage Ratio) of the Investor Agreement is amended by (i) inserting at the
end of clause (A) thereof the phrase "plus (5) the CareStream EBT Adjustment
Amount", (ii) inserting after the phrase "the Service Fee Adjustment Amount,"
in clause (B) thereof the phrase "less (4) the CareStream Interest Expense
Adjustment Amount," and (iii) deleting the ratios set opposite September 30,
1995, December 31, 1995 and March 31, 1996, respectively, and substituting for
such ratios those ratios set opposite such dates below:
Last Day of
Applicable Period Ratio
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September 30, 1995 2.50 to 1.00
December 31, 1995 2.00 to 1.00
March 31, 1996 2.50 to 1.00
(d) Paragraph (iv) of Section 5.03(h) (concerning Debt
Service Coverage Ratio) of the Investor Agreement is amended by (i) inserting
at the end of clause (A) thereof the phrase "plus (4) the CareStream Net Income
Adjustment Amount less (5) the CareStream D&A Adjustment Amount less (6) the
CareStream Interest Expense Adjustment Amount" and (ii) deleting the phrase
"Funded Debt Service" in clause (B) thereof and inserting in place thereof the
phrase "(1) Funded Debt Service less (2) the CareStream Debt Service Adjustment
Amount".
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(e) Paragraph (v) of Section 5.03(h) (concerning Total Debt
and Purchase Program Outstanding to Capitalization Ratio) of the Investor
Agreement is amended by (i) inserting at the end of (and within) the
parenthetical clause contained in clause (A)(1) thereof the phrase "or, for the
fiscal quarter ending December 31, 1995, Debt from time to time outstanding
under the Overline Facility" and (ii) adding to the end of said paragraph (v)
the following "on each such date other than the last day of the fiscal quarter
ending December 31, 1995, and on such last day 0.63 to 1.00."
SECTION 2. Amendments to the Parallel Purchase Commitment.
The Parallel Purchase Commitment is, effective as of the date hereof and
subject to the satisfaction of the condition precedent set forth in Section 3
hereof, hereby amended as follows:
(a) The definitions of the terms "Applicable
Coverage Ratio", "Credit Agreement", "Development Cost Debt Service Coverage
Ratio Adjustment Amount", "Development Cost Interest Coverage Ratio Adjustment
Amount", "Funded Debt" and "Funded Debt Service", contained in Section 1.01
thereof, are amended in their entirety to read as follows, respectively:
"Applicable Coverage Ratio" means, as of any date,
the ratio of (a)(i) EBIT, plus (ii) amortization and depreciation
expense, plus (iii) the Development Cost Interest Coverage Ratio
Adjustment Amount, plus (iv) the Phar-Mor Interest Coverage Ratio
Adjustment Amount, plus (v) the CareStream EBT Adjustment Amount,less
(vi) CareStream D&A Adjustment Amount, of the Seller and its
Consolidated Subsidiaries for the 12 month period ended on such date,
to (b)(i) Interest Expense, less (ii) the CareStream Interest Expense
Adjustment Amount, plus (iii) interest income then being currently
received (to the extent such income is netted against interest charges
in the definition of "Interest Expense"), for such 12 month period.
"Credit Agreement" means the Amended and Restated
Loan Agreement dated as of April 29, 1993, as amended by the First
Amendment to Amended and Restated Loan Agreement dated as of October
18, 1993, the Second Amendment to Amended and Restated Loan Agreement
dated as of June 20, 1994, the Third Amendment to Amended and Restated
Loan Agreement dated as of August 26, 1994, the Fourth Amendment to
Amended and Restated Loan Agreement dated as of November 22, 1994, the
Fifth Amendment to Amended and Restated Loan Agreement dated as of
April 26, 1995, the Sixth Amendment to Amended and Restated Loan
Agreement dated as of August 17, 1995, and the Seventh Amendment to
Amended and Restated Loan Agreement dated as of September 30, 1995,
among the Seller as Borrower, each Selling Subsidiary as Guarantors,
the Lenders and Issuer referred to therein, and Citicorp USA, Inc. as
Administrative Agent and NationsBank of Texas,
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N.A. and Banque Paribas as Co-Agents, as further amended, supplemented
or otherwise modified from time to time."
"Development Cost Debt Service Coverage Ratio
Adjustment Amount" means, as of any date of determination, the
aggregate amount of any reduction of Operating Cash Flow attributable
to any write-off of previously capitalized computer software
development costs or any write-off of the costs of, or loss on the
disposition of, replaced computer software and related hardware, but
excluding any such reduction in respect of the CareStream Operations;
provided that the aggregate amount of the Development Cost Debt
Service Coverage Ratio Adjustment Amount utilized during any period of
12 months shall not exceed $5,000,000 (prior to any adjustment for
income taxes).
"Development Cost Interest Coverage Ratio Adjustment
Amount" means, as of any date of determination, the aggregate amount
of any reduction of EBIT attributable to any write-off of previously
capitalized computer software development costs or any write-off of
the costs of, or loss on the disposition of, replaced computer
software and related hardware, but excluding any such reduction in
respect of the CareStream Operations;provided that the aggregate
amount of the Development Cost Interest Coverage Ratio Adjustment
Amount utilized during any period of 12 months shall not exceed
$5,000,000 (prior to any adjustment for income taxes).
"Funded Debt" means, as of the date of any
determination, the sum of the following (without duplication): (a)
all Debt evidenced by the Notes (as defined in the Credit Agreement)
for the B Borrowing Account (as defined in the Credit Agreement) as of
such date, (b) all Debt evidenced by the 7.09% Notes (as defined in
the Credit Agreement) as of such date, (c) all Debt consisting of
Subordinated Debt (as defined in the Credit Agreement) as of such
date, (d) all Debt which would be classified as "funded debt" or
"long-term debt", including the current portions thereof, on a
consolidated balance sheet of the Seller and its Consolidated
Subsidiaries prepared as of such date in accordance with GAAP, (e) all
Debt of the Seller or any Consolidated Subsidiary having a final
maturity (or which is renewable or extendible at the option of the
obligor for a period ending) more than one year after the date of
creation thereof, notwithstanding that payments in respect thereof are
required to be made by the obligor less than one year after the date
of the creation thereof or that any amount thereof is at the time
included also in Current Liabilities (as defined in the Credit
Agreement) of such obligor, (f) all Debt of the Seller or any
Consolidated Subsidiary outstanding under a revolving credit or
similar agreement providing for borrowings (and renewals and
extensions thereof) over a period of more than one year,
notwithstanding that any such Debt is created within one year of the
expiration of such agreement, (g) the present value (discounted at the
implicit rate, if known, or
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ten percent (10%) per annum otherwise) of all obligations in respect
of Capital Leases of the Seller or any Consolidated Subsidiary and (h)
Redeemable Capital Stock of the Seller valued at the greater of its
voluntary or involuntary maximum fixed repurchase or redemption price
plus accrued and unpaid dividends. For purposes hereof, the "maximum
fixed repurchase or redemption price" of any Redeemable Capital Stock
which does not have a fixed repurchase or redemption price shall be
calculated in accordance with the terms of such Redeemable Capital
Stock as if such Redeemable Capital Stock were purchased or redeemed
on any date on which Funded Debt shall be required to be determined,
and if such price is based upon, or measured by, the fair market value
of such Redeemable Capital Stock, such fair market value to be
determined in good faith by the Board of Directors of the issuer of
such Redeemable Capital Stock. Notwithstanding the foregoing, Funded
Debt shall be deemed not to include Indebtedness under the Overline
Facility, which is due and payable not later than March 31, 1996.
"Funded Debt Service" means, with respect to the
Seller and its Consolidated Subsidiaries, for any period, the sum of
(a) the aggregate of all principal and interest payments and
repurchase or redemption payments required or scheduled to be made
during such period with respect to Funded Debt, (b) interest payments
required to be made during such period with respect to Debt under the
Overline Facility and (c) Preferred Dividends accruing or payable
during such period.
(b) Section 1.01 of the Investor Agreement is amended by
adding thereto the following new definitions, to be added in the applicable
alphabetical order:
"CareStream D&A Adjustment Amount" means, for each
date of determination after the CareStream Operations shall have been
first accounted for as a discontinued operation of the Seller in
accordance with GAAP, the amounts in respect of depreciation and
amortization allocated to the CareStream Operations in accordance with
GAAP for the 12 month period ending on such date of determination.
"CareStream Debt Service Adjustment Amount" means,
for each date of determination after the CareStream Operations shall
first have been accounted for as a discontinued operation of the
Seller in accordance with GAAP, the principal and interest payments
allocated to or paid directly by the CareStream Operations in
accordance with GAAP for the 12 month period ending on such date of
determination.
"Carestream EBT Adjustment Amount" means, for each
date of determination after the CareStream Operations shall have been
first accounted for as a discontinued operation of the Seller in
accordance with GAAP, an amount equal to the loss of the Seller before
provision for income taxes allocated to the CareStream
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Operations in accordance with GAAP for the 12 month period ending on
such date of determination.
"Carestream Interest Expense Adjustment Amount"
means, for each date of determination after the CareStream Operations
shall have been first accounted for as a discontinued operation of the
Seller in accordance with GAAP, the Interest Expense allocated to or
paid directly by the CareStream Operations in accordance with GAAP for
the 12 month period ending on such date of determination.
"Carestream Net Income Adjustment Amount" means, for
each date of determination after the CareStream Operations shall have
been first accounted for as a discontinued operation of the Seller in
accordance with GAAP, the loss (after income taxes) of the Seller
allocated to the CareStream Operations in accordance with GAAP for the
12 month period ending on such date of determination.
"Carestream Operations" means, the operations
conducted by Healthcare Connect, Inc. and its Subsidiaries,
principally providing healthcare administration and management
services, together with (a) the assets of Healthcare Connect, Inc. and
its Subsidiaries, (b) the assets purchased by the Seller and/or
FoxMeyer Drug Company from the chapter 11 estate of Synercom
Healthcare Systems, Inc. on or about February 8, 1995 and (c) the
assets (consisting principally of hardware and software) used in the
operation of the DataNet division of the Seller and/or FoxMeyer Drug
Company, but excluding all shares of capital stock of FoxMeyer Canada.
"Overline Facility" means any agreement to be entered
into among the Seller, Operating Subsidiaries, the lenders named
therein and Citicorp USA, Inc., as Administrative Agent, providing a
working capital facility in the aggregate principal amount of up to
$60,000,000, and all Guaranties and other documents related thereto,
as such agreement, Guaranties and other documents may be amended,
replaced, supplemented or otherwise modified from time to time.
(c) Paragraph (iii) of Section 5.03(h) (concerning Interest
Coverage Ratio) of the Investor Agreement is amended by (i) inserting at the
end of clause (A) thereof the phrase "plus (5) the CareStream EBT Adjustment
Amount", (ii) inserting after the phrase "the Service Fee Adjustment Amount,"
in clause (B) thereof the phrase "less (4) the CareStream Interest Expense
Adjustment Amount," and (iii) deleting the ratios set opposite September 30,
1995, December 31, 1995 and March 31, 1996, respectively, and substituting for
such ratios those ratios set opposite such dates below:
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Last Day of
Applicable Period Ratio
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September 30, 1995 2.50 to 1.00
December 31, 1995 2.00 to 1.00
March 31, 1996 2.50 to 1.00
(d) Paragraph (iv) of Section 5.03(h) (concerning Debt
Service Coverage Ratio) of the Investor Agreement is amended by (i) inserting
at the end of clause (A) thereof the phrase "plus (4) the CareStream Net Income
Adjustment Amount less (5) the CareStream D&A Adjustment Amount less (6) the
CareStream Interest Expense Adjustment Amount" and (ii) deleting the phrase
"Funded Debt Service" in clause (B) thereof and inserting in place thereof the
phrase "(1) Funded Debt Service less (2) the CareStream Debt Service Adjustment
Amount".
(e) Paragraph (v) of Section 5.03(h) (concerning Total Debt
and Purchase Program Outstanding to Capitalization Ratio) of the Investor
Agreement is amended by (i) inserting at the end of (and within) the
parenthetical clause contained in clause (A)(1) thereof the phrase "or, for the
fiscal quarter ending December 31, 1995, Debt from time to time outstanding
under the Overline Facility" and (ii) adding to the end of said paragraph (v)
the following "on each such date other than the last day of the fiscal quarter
ending December 31, 1995, and on such last day 0.63 to 1.00."
SECTION 3. Condition Precedent. Sections 1 and 2 of this
Fourth Amendment shall become effective as of the date hereof when, and only
when, the Agent shall have received counterparts of this Fourth Amendment
executed by the Majority Banks under and as defined in the Parallel Purchase
Commitment (or, as to any Banks, advice satisfactory to the Agent that such
Banks have duly executed such amendment), the Seller, each Investor, CNAI, the
Co-Agent and the Agent.
SECTION 4. Reference to and Effect on the Agreements (a)
Upon the effectiveness of Sections 1 and 2 hereof, on and after the date of
this Fourth Amendment, each reference in either Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, and each reference to
either Agreement in the other Agreement, the Fee Letter, the Asset Purchase
Agreement, any Selling Subsidiary Letter, any letter agreement with any Bank or
any other document delivered in connection with either Agreement, shall mean
and be a reference to such Agreement as amended and modified hereby.
(b) Except as specifically amended and modified above, the
Agreements, the Certificates, the Fee Letter, the Asset Purchase Agreement, the
Selling Subsidiary Letters, the respective letter agreements between the Agent
or the Co-Agent, as applicable, and the respective Banks and the other
documents delivered in connection with the Agreements are and shall continue to
be in full force and effect and are hereby ratified and confirmed.
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SECTION 5. Cost and Expenses. The Seller agrees to pay on
demand all costs and expenses of each of the Agent and the Co-Agent,
respectively, in connection with the preparation, execution and delivery of
this Fourth Amendment and the other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Agent and the Co-Agent, respectively, with respect
thereto and with respect to advising the Agent or the Co-Agent as to its rights
and responsibilities hereunder and thereunder. The Seller further agrees to
pay on demand all costs and expenses, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Fourth
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 5.
SECTION 6. Execution in Counterparts. This Fourth 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. Delivery of an executed counterpart of a
signature page to this Fourth Amendment and the consent referred to below by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Fourth Amendment and such consent.
SECTION 7. Governing Law. This Fourth Amendment shall be
governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
FOXMEYER CORPORATION
By:
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Title:
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CORPORATE ASSET FUNDING
COMPANY, INC.
By: CITICORP NORTH AMERICA, INC.,
its Attorney-in-fact
By:
-------------------------------
Vice President
ENTERPRISE FUNDING CORPORATION
By:
-----------------------------------
Title:
CITIBANK, N.A.
By:
-----------------------------------
Vice President
NATIONSBANK, N.A.,
individually and as Co-Agent
By:
-----------------------------------
Title:
CITICORP NORTH AMERICA, INC.,
individually and as Agent
By:
-----------------------------------
Vice President
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A SYNDICATE BANKS
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BANK OF AMERICA ILLINOIS
(formerly Continental Bank, N.A.)
By:
--------------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Title:
FIRST BANK NATIONAL ASSOCIATION
By:
--------------------------------
Title:
B SYNDICATE BANKS
-----------------
THE FUJI BANK, LTD. - HOUSTON
AGENCY
By:
--------------------------------
Title:
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By:
--------------------------------
Title:
THE BANK OF TOKYO, LTD.,
acting through its Dallas Agency
By:
--------------------------------
Title:
