Exhibit 10(b)
FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT dated as of October 17,1997 to the AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT (as defined below), (this "Amendment"),
is among O&M Funding Corp., as Seller, Xxxxx & Minor Medical, Inc., as Servicer,
Xxxxx & Minor, Inc., as Parent and Guarantor, Receivables Capital Corporation,
as Issuer, and Bank of America National Trust and Savings Association, as
Administrator. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned thereto in the Receivables Purchase Agreement.
PRELIMINARY STATEMENTS
A. Seller, Servicer, Parent and Guarantor, Issuer and Administrator are
parties to that certain Amended and Restated Receivables Purchase Agreement,
dated as of May 28, 1996 (the "Receivables Purchase Agreement").
B. Seller, Servicer, Parent and Guarantor, Issuer and Administrator
desire to amend the Receivables Purchase Agreement in certain respects as set
forth 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. (i) The Receivables Purchase Agreement is hereby
amended to incorporate the changes shown on the marked pages attached hereto as
Annex A; (ii) Exhibit I to the Receivables Purchase Agreement is hereby amended
to incorporate the changes shown on the marked pages attached hereto as Annex B;
and (iii) Schedule II to the Receivables Purchase Agreement is hereby amended in
its entirety to read as set forth in Annex C hereto;
SECTION 2. Representations and Warranties. Each of the Seller and the
Servicer hereby represents and warrants that the representations and warranties
made by it set forth in Exhibit III to the Receivables 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. 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
become effective on the date on which the Administrator
shall have received the following (such date, the "Effective
Date"):
(a) a copy of this Amendment duly executed by each
of the parties hereto;
(b) a Certificate of the Secretary or Assistant
Secretary of each of the Seller and the Servicer
certifying that attached thereto is a copy of
the Resolutions of the Board of Directors of the
Seller or the Servicer, as applicable, approving
this Amendment and affirming that the Articles
of Incorporation, By-Laws and/or incumbency
certificate of Seller or the Servicer, as
applicable, delivered pursuant to the
Receivables Purchase Agreement have not been
amended or rescinded, and remain in full force
and effect;
(c) an opinion of counsel of the Seller and the Servicer in form
and substance reasonably acceptable to the Administrative
Agent;
(d) a fully-executed counterpart of the first amendment to each of
(i) the Amended and Restated Parallel Asset Purchase Agreement
and (ii) the Amended and Restated Liquidity Asset
Purchase Agreement;
(e) a fully-executed counterpart of the fee letter referred to in
Section 1.5 of the Receivables Purchase Agreement, as amended;
(f) a fully-executed counterpart of each of the Lock-Box
Agreements referred to in Schedule II of the Receivables
Purchase Agreement, as amended, and
(g) such other approvals, opinions or documents as the
Administrator may reasonably request.
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
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be governed by, and construed in accordance with, the internal laws of the State
of New York. Any reference to the Receivables Purchase Agreement from and after
the date hereof shall be deemed to refer to the Receivables Purchase Agreement
as amended hereby, unless otherwise expressly stated. The Receivables 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 Printed:______________________________
Title:_____________________________________
XXXXX & MINOR MEDICAL, INC.,
as Servicer
By:________________________________________
Name Printed:______________________________
Title:_____________________________________
XXXXX & MINOR, INC.,
as Parent and Guarantor
By:________________________________________
Name Printed:______________________________
Title:_____________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrator
By:________________________________________
Name Printed: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
RECEIVABLES CAPITAL CORPORATION, as
Issuer
By:________________________________________
Name Printed:______________________________
Title:_____________________________________
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ANNEX A
Amendments to Receivables Purchase Agreement
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AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
among
O&M FUNDING CORP.
as Seller,
XXXXX & MINOR MEDICAL, INC.,
as Servicer,
XXXXX & MINOR, INC.,
as Parent and Guarantor,
RECEIVABLES CAPITAL CORPORATION,
as Issuer
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrator
Dated as of May 28, 1996
(as amended as of October 17, 1997)
-----------------------------------
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practicable such reduction shall commence and conclude
in the same Fixed Period, and
C. if two or more Portions of Capital shall be outstanding at
the time of any proposed reduction, such proposed reduction shall be
applied, unless the Seller shall otherwise specify in the notice given
pursuant to Section 1.4(f)(i), to the Portion of Capital with the
shortest remaining Fixed Period.
Section 1.5. Fees. The Seller shall pay to the Administrator certain
fees in the amounts and on the dates set forth in a letter dated as of October
17, 1997 between the Seller and the Administrator, as such letter agreement may
be amended, supplemented or otherwise modified from time to time.
Section 1.6. Payments and Computations, Etc. (a) All amounts to be paid
or deposited by the Seller or the Servicer hereunder shall be paid or deposited
no later than 1:00 p.m. (New York City time) on the day when due in same day
funds to the Administration Account. All amounts received after 1:00 p.m. (New
York City time) will be deemed to have been received on the immediately
succeeding Business Day.
(b) The Seller shall, to the extent permitted by law, pay interest on
any amount not paid or deposited by the Seller (whether as Servicer or
otherwise) when due hereunder, at an interest rate equal to 2.0% per annum above
the Base Rate, payable on demand.
(c) All computations of interest under subsection (b) above and all
computations of Discount, fees, and other amounts hereunder shall be made on the
basis of a year of 360 days for the actual number of days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
such payment or deposit.
Section 1.7. Dividing or Combining Portions of the Capital of the
Purchased Interest. The Seller may, on the last day of any Fixed Period, either
(i) divide the Capital of the Purchased Interest into two or more portions
(each, a "Portion of Capital") equal, in aggregate, to the Capital of the
Purchased Interest, provided that after giving effect to such division the
amount of each such Portion of Capital shall not be less than $5,000,000, or
(ii) combine any two or more Portions of Capital outstanding on such last day
and
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having Fixed Periods ending on such last day into a single Portion of Capital
equal to the aggregate of the Capital of such Portions of Capital.
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ANNEX B
Amendments to Exhibit I to the Receivables Purchase
Agreement
the "Alternate Rate" for each such Fixed Period shall be an interest rate per
annum equal to the Base Rate in effect on each day of such Fixed Period. The
"Alternate Rate" for any Run-off Day (other than a Run-off Day of the type
described in clause (iii) of the definition of Run-off Day) shall be an interest
rate equal to 2% per annum above the Base Rate in effect on such day.
"Amended and Restated Intercreditor Agreement" means the
Amended and Restated Intercreditor Agreement dated as of May 28, 1996 among the
Issuer, the Administrator, the Administrative Agent and the Parallel Purchasers.
"Amended and Restated Liquidity Asset Purchase Agreement"
means the Amended and Restated Liquidity Asset Purchase Agreement dated as of
May 28, 1996 among Bank of America as Purchaser, Liquidity Agent and
Administrator, the other Purchasers from time to time parties thereto and the
Issuer, as amended, supplemented or otherwise modified from time to time.
"Amended and Restated Parallel Asset Purchase Agreement" means
the Amended and Restated Parallel Asset Purchase Agreement dated as of May 28,
1996 among O&M Funding Corp., as Seller, O&M Medical, as Servicer, Xxxxx &
Minor, Inc., as Parent and Guarantor, certain financial institutions from time
to time parties thereto, as the Parallel Purchasers, and Bank of America, as
Administrative Agent, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
"Amended and Restated Purchase and Sale Agreement" means the
Amended and Restated Purchase and Sale Agreement dated as of May 28, 1996
between O&M Medical as an Originator and as Servicer, the other Originators
which may from time to time be party thereto, Xxxxx & Minor, Inc., as Parent and
Guarantor, and O&M Funding Corp. as the Initial Purchaser, as the same may be
amended, supplemented or otherwise modified in accordance with its terms.
"Applicable Default Ratio Multiplier" means, for
any Month End Date, the product of (x) the Default Ratio Factor times (y) the
Six Month Default Ratio as calculated on such Month End Date.
"Attorney Costs" means and includes all fees and disbursements
of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Average Maturity" means at any time that period
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of days equal to the average maturity of the Pool Receivables calculated by the
Servicer in the then most recent Seller Report; provided that if the
Administrator shall disagree with any such
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"Contract" means, with respect to any Receivable, any and all
contracts, understandings, instruments, agreements, leases, invoices, notes, or
other writings pursuant to which such Receivable arises or which evidences such
Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.
"CP Market Disruption Event" means, at any time for any reason
whatsoever, the Issuer shall be unable or unwilling to raise, or shall be
precluded or prohibited from raising, funds through the issuance of Notes in the
United States' commercial paper market at such time.
"CP Rate" for any Fixed Period for any Portion of Capital of
the Purchased Interest means, to the extent the Issuer funds such Portion of
Capital for such Fixed Period by issuing Notes, a rate per annum, selected at
the sole discretion of the Administrator, equal to (A) the sum of (i) the rate
(or if more than one rate, the weighted average of the rates) at which Notes of
the Issuer having a term equal to such Fixed Period and to be issued to fund
such Portion of Capital may be sold by any placement agent or commercial paper
dealer selected by the Administrator on behalf of the Issuer, as agreed between
each such agent or dealer and the Administrator and notified by the
Administrator to the Servicer; provided that if the rate (or rates) as agreed
between any such agent or dealer and the Administrator with regard to any Fixed
Period for such Portion of Capital is a discount rate (or rates), then such rate
shall be the rate (or if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an interest-bearing
equivalent rate per annum, plus (ii) 0.05% of the face amount of such Notes,
expressed as a percentage of such face amount and converted to an
interest-bearing equivalent rate per annum or (B) the "weighted average cost"
(as defined below) related to the issuance of Notes that are allocated, in whole
or in part, by the Issuer (or by the Administrator) to fund or maintain such
Portion of Capital, all other Portions of Capital of the Purchased Interest held
by the Issuer hereunder and all interests (including security interests) in
receivables or other assets of "Other Pool Sellers" (as defined below) held by
the Issuer; provided, however, that if any component of such rate is a discount
rate, in calculating the "CP Rate" for such Portion of Capital for such Fixed
Period, the Issuer shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum.
As used in this definition,(i) "Other Pool Sellers" means all other sellers
which transfer interests (including
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by borrowing loans secured by such interests) in receivables or other financial
assets to the Issuer to the extent that such interests in receivables or other
financial assets are aggregated with the Portion of Capital of the Purchased
Interest held by the Issuer hereunder and funded on a pooled basis by the
Issuer, and (ii) the Issuer's "weighted average cost" shall consist of (x) the
actual interest rate paid to purchasers of the Issuer's Notes, together with the
commissions of placement agents and dealers in respect of such Notes, to the
extent such commissions are allocated, in whole or in part, to such Notes by the
Issuer (or by the Administrator), (y) the costs associated with the issuance of
such Notes, and (z) other borrowings by the Issuer (other than under any Program
Support Agreement), including to fund small or odd dollar amounts that are not
easily accommodated in the commercial paper market.
"Credit and Collection Policy" means those receivables credit
and collection policies and practices of the Originators in effect on the date
of the Agreement and described in Schedule I hereto, as modified in compliance
with the Agreement.
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations to pay the deferred purchase price of property or services,
(iv) obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, (v) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of kinds referred to in clauses (i) through (iv) above,
and (vi) liabilities in respect of unfunded vested benefits under plans covered
by Title IV of ERISA.
"Default Ratio Factor" means, for each of the
twelve consecutive Month End Dates ending with the
September, 1997 Month End Date, 4.5, and for each Month End
Date thereafter, 6.0.
"Defaulted Receivable" means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for at least 91 days from the original due date for
such payment;
(ii) as to which the Obligor thereof or any other
Person obligated thereon or owning any
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Related Security in respect thereof has taken any action, or
suffered any event to occur, of the type described in
paragraph (g) of Exhibit VI hereto; or
(iii) which, consistent with the Credit and
Collection Policy, would be written off any Originator's books
as uncollectible.
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marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities") having a term
comparable to such Fixed Period; and
"LIBOR" means the rate of interest per annum
determined by the Liquidity Agent to be the arithmetic mean (rounded
upward to the nearest 1/16th of 1%) of the rates of interest per annum
notified to the Liquidity Agent by each Reference Bank as the rate of
interest at which dollar deposits in the approximate amount of the
Capital associated with such Fixed Period would be offered to major
banks in the London interbank market at their request at or about 11:00
a.m. (London time) on the second Business Day prior to the commencement
of such Fixed Period.
"Existing Receivables Agreement" means the Receivables
Purchase Agreement dated as of December 28, 1995, among the Seller, the
Servicer, the Parent, the Issuer and the Administrator.
"Excluded Obligor" means an Obligor, so designated in writing
as such by the Administrator to the Servicer, from time to time, it being
understood that from time to time the Administrator may revoke its designation
of one or more Obligors as Excluded Obligors by written notice to the Servicer.
"Excluded Receivables" means all Receivables originated by all
divisions of Stuart other than the Greensburg, Pennsylvania, Allentown,
Pennsylvania and Franklin, Massachusetts divisions of Stuart.
"Facility Fee" has the meaning set forth in Section 1.12 of
the Amended and Restated Purchase and Sale Agreement.
"Facility Fee Percentage" has the meaning set forth in Section
1.12 of the Amended and Restated Purchase and Sale Agreement.
"Facility Termination Date" means the earliest to occur of (a)
October 15, 1998, (b) the Purchase Termination Date, as defined in the Amended
and Restated Liquidity Asset Purchase Agreement, which as of October 17, 1997,
is October 15, 1998, or such later date designated as the Purchase Termination
Date from time to time pursuant to the Amended and Restated Liquidity Asset
Purchase Agreement (it being understood that the Administrator shall notify the
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Servicer of the designation of such later date, provided that failure to provide
such notice shall not limit or otherwise affect the obligations of the Servicer
or the rights of the Administrator, the Issuer, or any other party to the
Amended and Restated Liquidity Asset Purchase
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"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidations, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the benefit
of creditors, composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case (a) and (b) undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Investment Grade" means with respect to any Person's Rated
Debt (if such Rated Debt is not Single-A Rated), a rating of at least BBB- or
A-2, as applicable, by Standard & Poor's Ratings Services and Baa3 or P-2, as
applicable, by Xxxxx'x Investors Service, Inc. and, if such Person's Rated Debt
is rated by Duff & Xxxxxx Credit Rating Co., at least BBB- or D-2, as
applicable, by such rating agency; provided, that if such Person has a rating of
both its long term public senior unsecured, uncredit-enhanced debt securities
and its short term senior unsecured uncredit-enhanced debt securities, then such
Person must have the ratings specified above for both the long term and short
term securities.
"Issuer" has the meaning set forth in the
preamble to the Agreement.
"LIBOR" means the rate of interest per annum determined by the
Liquidity Agent to be the arithmetic mean (rounded upward to the nearest 1/16th
of 1%) of the rates of interest per annum notified to the Liquidity Agent by
each Reference Bank as the rate of interest at which dollar deposits in the
approximate amount of the Capital associated with such Fixed Period would be
offered to major banks in the London interbank market at their request at or
about 11:00 a.m. (London time) on the second Business Day prior to the
commencement of such Fixed Period.
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"Lien" means any mortgage, pledge, hypothecation, assignment
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise) or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or other similar
recording or notice statute, and any lease in the nature thereof) securing or
purporting to secure any Indebtedness.
"Liquidity Agent" means Bank of America in its
capacity as Liquidity Agent pursuant to the Amended and
Restated Liquidity Asset Purchase Agreement.
"Lock-Box Account" means an account maintained at a bank or
other financial institution for the purpose of receiving or holding Collections,
either directly from Obligors, from any Originators or Seller or otherwise.
"Lock-Box Agreement" means an agreement, in substantially the
applicable form set forth in Annex B, between the Seller and each Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial
institutions holding one or more Lock-Box Accounts.
"Loss Reserve" for the Purchased Interest under the Amended
and Restated Receivables Purchase Agreement and the Amended and Restated
Parallel Asset Purchase Agreement on any date means an amount equal to the
greater of
(x) Capital times the greatest of the following: (i) the
highest Applicable Default Ratio Multiplier for any of the twelve most
recent Month End Dates, (ii) 10 times the highest Six Month
Loss-to-Liquidation Ratio for any of the twelve most recent Month End
Dates, (iii) 2 times the highest Normal or Special Concentration
Percentage for any Obligor the Rated Debt of which is Investment Grade,
(iv) 4 times the highest Normal or Special Concentration Percentage for
any Obligor the Rated Debt of which is not Investment Grade, (v) the
highest Normal or Special Concentration Percentage for any Obligor the
Rated Debt of which is Single-A Rated, and (vi) 7.5%;
and
(y) $6,000,000.
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"Majority Parallel Purchasers" means, at any
time, Parallel Purchasers with Percentages under the Amended
and Restated Parallel Asset Purchase Agreement that are more
than 50% in the aggregate.
"Maximum Parallel Purchase" means, with respect
to each Parallel Purchaser and the Amended and Restated
Parallel Asset
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"Rate Variance Factor" means a number greater than one that
reflects the potential variance in selected interest rates over a period of time
designated by the Administrator, as specified by the Administrator from time to
time, notified to the Seller and set forth in the Seller Report in accordance
with the provisions thereof; provided that the "Rate Variance Factor" may be
changed from time to time upon at least five days' prior notice to the Servicer.
The initial Rate Variance Factor shall be 1.25.
"Rated Debt" means with respect to any Person, (a) the long
term public senior unsecured, uncredit-enhanced, debt securities of such Person
and (b) the short term senior unsecured and uncredit-enhanced debt
securities of such Person.
"Receivable" means any indebtedness and other obligations owed
to any Originator or any rights of any Originator to payment from or on behalf
of an Obligor whether constituting an account, chattel paper, instrument or
general intangible, arising in connection with the sale or lease of goods or the
rendering of services by any Originator, and includes, without limitation, the
obligation to pay any finance charges, fees and other charges with respect
thereto. Indebtedness and other obligations arising from any one transaction,
including, without limitation, indebtedness and other obligations represented by
an individual invoice or agreement, shall constitute a Receivable separate from
a Receivable consisting of the indebtedness and other obligations arising from
any other transaction.
"Receivables Pool" means at any time all of the then
outstanding Receivables excluding the Excluded Receivables.
"Reference Bank" means Bank of America.
"Related Assets" has the meaning set forth in Section 1.1 of
the Amended and Restated Purchase and Sale Agreement.
"Related Security" means with respect to any
Receivable:
(i) all of any Originator's interest in any goods
(including returned goods), and documentation or title
evidencing the shipment or storage of any goods (including
returned goods), relating to any sale giving rise to such
Receivable;
(ii) all other security interests or liens and
property subject thereto from time to
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time purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or
otherwise, together with all UCC financing statements or
similar filings signed by an Obligor relating thereto; and
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"Settlement Period" for each Portion of Capital means each
period commencing on the first day and ending on the last day of each Fixed
Period for such Portion of Capital and, on and after the Termination Date, such
period (including, without limitation, a period of one day) as shall be selected
from time to time by the Administrator or, in the absence of any such selection,
each period of 30 days from the last day of the immediately preceding Settlement
Period.
"Single-A Rated" means, with respect to any Person's Rated
Debt, an actual rating of at least A- or A-2, as applicable, by Standard and
Poor's Ratings Services and A3 or P-2, as applicable, by Moody's Investor's
Service, Inc. and, if such Person's Rated Debt is rated by Duff & Xxxxxx Credit
Rating Co., at least A- or D-2, as applicable, by such rating agency; provided,
that if such Person has a rating of both its long term public senior unsecured,
uncredit-enhanced debt securities and its short term senior unsecured
uncredit-enhanced debt seucrities, then such Person must have the ratings
specified above for both the long term and short term securities.
"Six Month Default Ratio" means the ratio (expressed as a
percentage and rounded to the nearest 1/100 of 1%) computed as of each Month End
Date by dividing (i) the amount of Pool Receivables that became Defaulted
Receivables during the six month period ending on such Month End Date by (ii)
the aggregate amount of Pool Receivables invoiced by the Originators during the
six month period ending on the Month End Date which occurred four months before
such Month End Date.
"Six Month Dilution Ratio" means the ratio (expressed as a
percentage and rounded to the nearest 1/100 of 1%) computed as of each Month End
Date by dividing (i) the aggregate reduction attributable to Dilution
Adjustments in each case occurring during the six month period ending on such
Month End Date by (ii) the aggregate amount of Pool Receivables invoiced by the
Originators during the six month period ending on the Month End Date which
occurred one month before such Month End Date.
"Six Month Loss-to-Liquidation Ratio" means the ratio
(expressed as a percentage and rounded to the nearest 1/100th of 1%) computed as
of each Month End Date by dividing (i) the aggregate Outstanding Balance of all
Pool Receivables written off by the Seller, or which should have been written
off by the Seller in accordance with the Credit and Collection Policy, during
the six month period ending on such Month End Date by (ii) the aggregate amount
of Collections of Pool Receivables actually received during such six month
period.
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"Solvent" means, as to any Person at any time, that (a) the
fair value of the property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes
of Sections 55-80 and 55-81 of the Virginia Code Annotated; (b) the present fair
saleable value of the property of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured; (c) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed, contingent
and unliquidated liabilities) as they mature in the normal course of business;
(d) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital.
"Special Concentration Percentage" means, for any Obligor,
such percentage as has been so designated in writing as such by the
Administrator at its sole discretion to the Seller, from time to time, with
respect to an Obligor, it being understood that the Administrator may (i) lower
such percentage from time to time at its sole discretion by written notice to
the Seller and (ii) raise such percentage only with the written consent of the
Seller.
"Stuart" means Stuart Medical, Inc., a
Pennsylvania corporation.
"Sub-Servicer" has the meaning set forth in
Section 4.1.
"Subsidiary" means, with respect to any Person, any
corporation of which more than 50% of the outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person.
"Supplement" means a Supplement executed by the Parent or any
Subsidiary of the Parent in form and substance satisfactory to the Administrator
and the Administrative Agent under the Amended and Restated Parallel Asset
Purchase Agreement, pursuant to which the Parent or a Subsidiary of
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the Parent shall become an Originator under the Amended and Restated Purchase
and Sale Agreement.
"Tangible Net Worth" means total stockholders' equity minus
goodwill, patents, trade names, trade marks, copyrights, franchises,
organizational expense, deferred assets other than
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ANNEX C
Amendments to Schedule II to the Receivables Purchase
Agreement
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SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box Account
NationsBank:
Atlanta 3750239306
Dallas 0180533554
Crestar:
Baltimore 201143739
Baltimore - EFT Payments (Paper Remittances) 201652315
First Union:
Charlotte 2050000226997
Orlando 2050000226997
Richmond 2050000226997
First Chicago 0000000
PNC Bank 3063550
Mellon:
Pittsburgh 1184649
EFT Payments 1445079
EFT Payments (Department of Defense) 1936687
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