AMENDMENT NO. 3 Dated as of November 3, 2010 in relation to SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT Dated as of July 28, 2008
Exhibit 10.5
Execution Version
AMENDMENT NO. 3
Dated as of November 3, 2010
in relation to
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Dated as of July 28, 2008
THIS AMENDMENT NO. 3 (this “Amendment”) dated as of November 3, 2010 is entered into by and
among (i) MEDCO HEALTH RECEIVABLES, LLC, a Delaware limited liability company (the “Seller”), (ii)
MEDCO HEALTH SOLUTIONS, INC., a Delaware corporation (the “Servicer”), (iii) the “Conduit
Purchasers” identified on the signature pages hereto, (iv) the “Committed Purchasers” identified on
the signature pages hereto, (v) the “Managing Agents” identified on the signature pages hereto,
(vi) CITICORP NORTH AMERICA, INC., as resigning administrative agent and CITIBANK, N.A., as
successor administrative agent (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENTS
A. Reference is made to the Second Amended and Restated Receivables Purchase Agreement, dated
as of July 28, 2008, among the Seller, the Servicer, the “Conduit Purchasers”, “Committed
Purchasers” and “Managing Agents” from time to time parties thereto and the Administrative Agent
(as amended, the “Receivables Purchase Agreement”). Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Receivables Purchase Agreement.
B. The parties hereto have agreed to amend the Receivables Purchase Agreement on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
SECTION 1. Amendment to Receivables Purchase Agreement. Effective upon the
satisfaction of the conditions specified in Section 3 below, the Receivables Purchase Agreement is
hereby as amended as follows:
1.1 Section 11.16(a) of the Receivables Purchase Agreement is amended to add the following new
sentence immediately after the second sentence thereof: “Furthermore, the Seller, the
Administrative Agent and each Purchaser represents and warrants, as to itself, that each remittance
of Collections to the Administrative Agent or the Purchasers hereunder will have been (i) in
payment of a debt incurred by the Seller in the ordinary course of the business or
financial affairs of the Seller and the recipient thereof and (ii) made in the ordinary course
of the business or financial affairs of the Seller and the recipient thereof.”
1.2 The definition of “Calculation Period” appearing in Schedule I of the Receivables Purchase
Agreement is amended and restated in its entirety to read as follows:
“Calculation Period” means each period from and including the first day of a fiscal
month of the Seller to and including the last day of such fiscal month.
1.3 The definition of “Concentration Limit” appearing in Schedule I of the Receivables
Purchase Agreement is amended to insert the following parenthetical phrase at the end of the second
sentence thereof: “(including the effect of any merger or consolidation)”.
1.4 The definition of “Contract” appearing in Schedule I of the Receivables Purchase Agreement
is amended to delete the proviso appearing at the end thereof.
1.5 The definition of “Eligible Obligor” appearing in Schedule I of the Receivables Purchase
Agreement is amended (1) to insert the word “and” immediately before clause (iv) thereof and (2) to
delete clause (v) thereof in its entirety.
1.6 The definition of “Eligible Receivable” appearing in Schedule I of the Receivables
Purchase Agreement is amended (1) to re-letter clauses (p) and (q) as clauses (q) and (r),
respectively, and to add the following as new clause (p) therein:
“(p) which either (x) has not been re-invoiced and has not otherwise had its invoice
date or due date changed on the books and records of the Originator or (y) which would be an
Eligible Receivable but for the preceding clause (x) and is a Permitted Re-invoiced
Receivable; provided, that the Outstanding Balance of such Permitted Re-invoiced
Receivable, when added to the aggregate Outstanding Balance of all Eligible Receivables
which are Permitted Re-invoiced Receivables does not exceed 3.0% of the Net Receivables Pool
Balance;”.
1.7 Schedule I of the Receivables Purchase Agreement is amended to add the following new
defined term in the appropriate alphabetical order:
“Permitted Re-invoiced Receivable” means a Receivable arising under a Contract with an
Obligor that is a drug manufacturer and which has been re-invoiced in accordance with the terms of
such Contract for reasons other than the inability of such Obligor to pay.
1.8 Schedule IV of the Receivable Purchase Agreement is amended and restated in its entirety
as set forth on Schedule I hereto.
1.9 Section A of Schedule VIII of the Receivable Purchase Agreement is amended and restated in
its entirety as set forth on Schedule II hereto.
1.10 Annex A-1 to the Receivables Purchase Agreement is amended and restated in its entirety
as set forth on Annex A-1 hereto.
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1.11 The parties hereto (x) acknowledge that as of the date of this Amendment, Deposit Account
number 3304685267 is not subject to a Control Agreement and (y) agree that, notwithstanding any
provision of the Receivables Purchase Agreement to the contrary, including, without limitation,
Sections 4.02(g), 5.01(v) and 5.03(h), the failure to have a Control Agreement in respect of such
Deposit Account shall not constitute a Termination Event or a Servicer Replacement Event under the
Receivables Purchase Agreement so long as (i) the Seller and the Servicer diligently pursue the
execution of a Control Agreement in respect of such Deposit Account and (ii) such Deposit Account
is subject to a Control Agreement no later than of November 30, 2010.
SECTION 2. Covenants, Representations and Warranties.
2.1 Upon the effectiveness of this Amendment, each of the Seller and the Servicer hereby
reaffirms all covenants, representations and warranties made by it in the Receivables Purchase
Agreement (amended hereby) and agrees that all such covenants, representations and warranties shall
be deemed to have been remade as of the effective date of this Amendment.
2.2 Each of the Seller and the Servicer hereby represents and warrants that (i) this Amendment
constitutes the legal, valid and binding obligation of such party, enforceable against it in
accordance with its terms and (ii) upon the effectiveness of this Amendment, no Termination Event
or event or circumstance which, with the giving of notice or the passage of time, or both, would
constitute a Termination Event shall exist under the Receivables Purchase Agreement.
SECTION 3. Conditions Precedent. This Amendment shall become effective as of the
date hereof upon receipt by the Administrative Agent of (x) copies of this Amendment duly executed
by the Seller, the Servicer, the Administrative Agent, each Managing Agent and each Purchaser and
(y) copies of Amendment No. 1 to Originator Purchase Agreement (as hereinafter defined) duly
executed by the Seller, the Servicer and the Administrative Agent.
SECTION 4. Reference to and Effect on the Transaction Documents.
4.1 Upon the effectiveness of this Amendment, each reference in the Receivables Purchase
Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” “hereby” or words of like import
shall mean and be a reference to the Receivables Purchase Agreement as amended hereby, and each
reference to the Receivables Purchase Agreement in any other document, instrument and agreement
executed and/or delivered in connection with the Receivables Purchase Agreement shall mean and be a
reference to the Receivables Purchase Agreement as amended hereby.
4.2 Except as specifically amended hereby, the Receivables Purchase Agreement, the other
Transaction Documents and all other documents, instruments and agreements executed and/or delivered
in connection therewith shall remain in full force and effect and are hereby ratified and
confirmed.
4.3 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of any Purchaser, any Managing Agent or the
Administrative Agent under the Receivables Purchase Agreement, the other Transaction Documents
or any other document, instrument, or agreement executed in connection therewith, nor constitute a
waiver of any provision contained therein.
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SECTION 5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Execution in Counterparts. This 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 when taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart of this Amendment
by facsimile or electronic mail shall be effective as delivery of a manually executed counterpart
of this Amendment.
SECTION 7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.
SECTION 8. Successor Administrative Agent. Effective as of the date hereof, (a)
Citicorp North America, Inc. (“CNAI”) resigns as Administrative Agent under the Receivables
Purchase Agreement, (b) each Purchaser hereby appoints and authorizes Citibank, N.A.
(“Citibank”) as Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Receivables Purchase Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers are reasonably incidental
thereto and (c) Citibank hereby accepts the foregoing appointment as Administrative Agent. Each of
the Seller, the Servicer and each Managing Agent consents to the resignation of CNAI and the
appointment of Citibank as successor Administrative Agent, and waives any requirement for prior
notice with respect thereto required under the Receivables Purchase Agreement. From and after the
date hereof, Citibank shall succeed to and become vested with all the rights and duties of the
resigning Administrative Agent and the resigning Administrative Agent shall be discharged from its
duties and obligations under the Transaction Documents. The provisions of Section 6.06, Article VII
and Article X of the Receivables Purchase Agreement shall insure to the benefit of CNAI as to any
actions taken or omitted to be taken by it as Administrative Agent under the Receivables Purchase
Agreement.
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SECTION 9. Successor Managing Agent. Effective as of the date hereof, (a) CNAI
resigns as Managing Agent for the Purchaser Group of which CAFCO, LLC, as Conduit Purchaser, and
Citibank, as Committed Purchaser, are members, (b) each Purchaser in such Purchaser Group hereby
appoints and authorizes Citibank as Managing Agent to take such action as agent on its behalf and
to exercise such powers under the Receivables Purchase Agreement as are delegated to such Managing
Agent by the terms thereof, together with such powers are reasonably incidental thereto and (c)
Citibank hereby accepts the foregoing appointment as Managing Agent for such Purchaser Group. Each
of the Seller, the Servicer and each of CAFCO, LLC, as Conduit Purchaser, and Citibank, as
Committed Purchaser, consents to the resignation of CNAI and the appointment of Citibank as
successor Managing Agent, and waives any requirement for prior notice with respect thereto required
under the Receivables Purchase
Agreement. From and after the date hereof, Citibank shall succeed to and become vested with
all the rights and duties of the resigning Managing Agent and the resigning Managing Agent shall be
discharged from its duties and obligations under the Transaction Documents. The provisions of
Section 6.06, Article IX and Article X of the Receivables Purchase Agreement shall insure to the
benefit of CNAI as to any actions taken or omitted to be taken by it as Managing Agent under the
Receivables Purchase Agreement.
SECTION 10. Amendment to Originator Agreement. By execution hereof, each of the
Managing Agents hereby consent to the execution and delivery by the Seller and the Originator of
Amendment No. 1 to Receivables Purchase and Contribution Agreement of even date herewith among the
Seller, the Originator and the Administrative Agent (“Amendment No. 1 to the Originator
Purchase Agreement”) in the form attached as Exhibit A hereto.
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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 written above.
| MEDCO HEALTH RECEIVABLES, LLC, as Seller |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | President & Treasurer | |||
| MEDCO HEALTH SOLUTIONS, INC., as Servicer |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Assistant Treasurer | |||
Signature Page to Amendment No. 3
| CAFCO, LLC, as a Conduit Purchaser |
||||
| By: | Citicorp North America, Inc., as Attorney-in-Fact | |||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxxx | |||
| Title: | Vice President | |||
| CITIBANK, N.A., as successor Administrative Agent, as a Managing Agent and as a Committed Purchaser |
||||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 3
| CITICORP NORTH AMERICA, INC., as resigning Administrative Agent and resigning Managing Agent |
||||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 3
| VICTORY RECEIVABLES CORPORATION, as a Conduit Purchaser |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | President | |||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Managing Agent |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Committed Purchaser |
||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx Xxx | |||
| Title: | Authorized Signatory | |||
Signature Page to Amendment Xx. 0
| XXXXXXX XXXXXX FUNDING LLC, as a Conduit Purchaser |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Vice President | |||
| THE BANK OF NOVA SCOTIA, as a Committed Purchaser |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Director | |||
Signature Page to Amendment No. 3
Schedule I
SCHEDULE IV
DEPOSIT ACCOUNTS AND DEPOSIT ACCOUNT BANKS
None, other than: |
||
Bank:
|
JPMorgan Chase Bank | |
Account No.
|
000-0-000000 | |
Account Name:
|
Medco Health Receivables, LLC | |
Bank Contact:
|
Xxxxxxx Xxxx | |
| JPMorgan Chase Bank | ||
| Mail Code NY2-0901 | ||
| 000 Xxxxx Xxxxxxx Xxxx 0XX | ||
| Xxxxxxxx, XX 00000-0000 | ||
| Phone (000) 000-0000 | ||
| Fax (000) 000-0000 |
The account listed above is the “Collection Account” referred to in clause (a) of the definition of
such term.
Bank:
|
JPMorgan Chase Bank | |||
Account No.
|
304685267 | |||
Account Name:
|
Medco Health Receivables, LLC | |||
Bank Contact:
|
Xxxxxxx Xxxx | |||
| JPMorgan Chase Bank | ||||
| Mail Code NY2-0901 | ||||
| 000 Xxxxx Xxxxxxx Xxxx 0XX | ||||
| Xxxxxxxx, XX 00000-0000 | ||||
| Phone (000) 000-0000 | ||||
| Fax (000) 000-0000 | ||||
Schedule II
A. ACCOUNTS PAYABLE DEDUCTION AMOUNT
“Aggregate Accounts Payable Deduction Amount” means, as of any Monthly Reporting Date
and continuing until (but not including) the next Monthly Reporting Date, an amount equal to:
(a) during any Tier 1 Period (as defined below), the sum of:
(i) the greater of (x) the highest six-month (or, if there are less than six
months included in the Look Back Period, the number of months in the Look
Back Period) rolling average aggregate Accounts Payable for the Top 10
Obligors during the Look Back Period and (y) the aggregate Accounts Payable
for the Top Ten Obligors for the Current Calculation Period; and
(ii) the greater of (x) the highest six-month (or, if there are less than
six months included in the Look Back Period, the number of months in the
Look Back Period) rolling average aggregate Accounts Payable for the Non-Top
10 Obligors during the Look Back Period and (y) the aggregate Accounts
Payable for the Non-Top Ten Obligors for the Current Calculation Period;
(b) during any Tier 2 Period (as defined below), the sum of:
(i) the greater of (x) (A) the highest six-month (or, if there are less than
six months included in the Look Back Period, the number of months in the
Look Back Period) rolling average aggregate Accounts Payable for the Top 10
Obligors during the Look Back Period, multiplied by (B) 1.2 and (y) the
aggregate Accounts Payable for the Top Ten Obligors for the Current
Calculation Period; and
(ii) the greater of (x) (A) the highest six-month (or, if there are less
than six months included in the Look Back Period, the number of months in
the Look Back Period) rolling average aggregate Accounts Payable for the
Non-Top 10 Obligors during the Look Back Period, multiplied by (B) 1.2 and
(y) the aggregate Accounts Payable for the Non-Top Ten Obligors for the
Current Calculation Period; and
(c) during any period that is neither a Tier 1 Period nor a Tier 2 Period, the sum
of (i) the Accounts Payable Deduction Amount (Top 10 Obligors) and (ii) the Accounts
Payable Deduction Amount (Non-Top 10 Obligors).
For purposes of this definition, the following terms have the following meanings:
“Tier 1 Period” means a Rating Level 1 Period when the Originator has (1) a
Debt Rating of BBB or higher by S&P and Baa2 or higher by Xxxxx’x or (2) a Debt
Rating of BBB- or lower by S&P or Baa3 or lower by Xxxxx’x but neither Debt Rating
has a negative outlook or is on negative credit watch (or any equivalent
designation).
“Tier 2 Period” means a Rating Level 1 Period that is not a Tier 1 Period.
For purposes of the foregoing, the following terms shall have the following meanings:
“Accounts Payable” means, with respect to any Obligor as of any Monthly Reporting Date
and continuing until (but not including) the next Monthly Reporting Date, the aggregate amount
payable by the Originator to such Obligor as of the last day of the Current Calculation Period
pursuant to any contract or other arrangement between the Originator and such Obligor;
provided, however, that in the case of an Obligor and its Affiliates, the Accounts
Payable shall be calculated as if such Obligor and such Affiliates were a single Obligor (including
the effect of any merger or consolidation).
“Accounts Payable Deduction Amount (Non-Top 10 Obligors)” means, as of any Monthly
Reporting Date and continuing until (but not including) the next Monthly Reporting Date, the
product of (a) the highest aggregate Accounts Payable for the Non-Top Ten Obligors for any
Calculation Period during the Look-Back Period times (b) a ratio (expressed as a percentage), (i)
the numerator of which is the Accounts Payable Deduction Amount (Top 10 Obligors) for the Current
Calculation Period and (ii) the denominator of which is the highest aggregate Accounts Payable for
the Top Ten Obligors for any Calculation Period during the Look-Back Period.
“Accounts Payable Deduction Amount (Top 10 Obligors)” means, as of any Monthly
Reporting Date and continuing until (but not including) the next Monthly Reporting Date, an amount
computed by (i) determining the highest Accounts Payable for each of the Top Ten Obligors for any
Calculation Period during the Look-Back Period and (ii) summing the results determined pursuant to
clause (i) for each of the Top Ten Obligors.
“Look-Back Period” means, for any Monthly Reporting Date, the applicable period
specified below (which in each case shall include the Current Calculation Period):
| Monthly Reporting Date: | Look-Back Period | |
August 20, 2010
|
2 most recently ended Calculation Periods | |
September 20, 2010
|
3 most recently ended Calculation Periods | |
October 20, 2010
|
4 most recently ended Calculation Periods | |
November 22, 2010
|
5 most recently ended Calculation Periods | |
December 20, 2010
|
6 most recently ended Calculation Periods | |
January 20, 2011
|
7 most recently ended Calculation Periods | |
February 21, 2011
|
8 most recently ended Calculation Periods | |
March 21, 2011
|
9 most recently ended Calculation Periods | |
April 20, 2011
|
10 most recently ended Calculation Periods | |
May 20, 2011
|
11 most recently ended Calculation Periods | |
Any time after May 20, 2011
|
12 most recently ended Calculation Periods |
“Non-Top 10 Obligors” means, collectively, all Obligors other than the Top Ten
Obligors.
“Top 10 Obligors” means, as of any Monthly Reporting Date and continuing until (but
not including) the next Monthly Reporting Date, the ten (10) Obligors with the greatest aggregate
Outstanding Balance of Eligible Receivables as of the last day of the Current Calculation Period,
determined as if each Obligor and its Affiliates were a single Obligor.
Annex A-I
ANNEX A-I
[Omitted from Filing]
EXHIBIT A
Form of Amendment No. 1 to Originator Purchase Agreement
[Omitted from Filing]
