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EXHIBIT 10.26
THIRD AMENDMENT
AND SECOND WAIVER
TO
RECEIVABLES PURCHASE AGREEMENT
THIS THIRD AMENDMENT AND SECOND WAIVER TO RECEIVABLES PURCHASE
AGREEMENT ("Amendment"), dated as of June 16, 2000, is among CGSF Funding
Corporation, a Delaware corporation ("Seller"), McKesson HBOC, Inc., a Delaware
corporation (the "Servicer"; the Servicer together with the Seller, the "Seller
Parties" and each a "Seller Party"), the funding entities parties hereto (the
"Financial Institutions"), Preferred Receivables Funding Corporation ("PREFCO"),
Falcon Asset Securitization Corporation ("Falcon"), Blue Ridge Asset Funding
Corporation ("Blue Ridge") and Liberty Street Funding Corp. ("Liberty Street"),
(PREFCO, Falcon, Blue Ridge and Liberty Street being referred to collectively as
the "Conduits", and together with the Financial Institutions, the "Purchasers"),
Bank One, NA (formerly known as The First National Bank of Chicago, "Bank One"),
Wachovia Bank, N.A. and The Bank of Nova Scotia (collectively, the "Managing
Agents") and Bank One, as the collateral agent (the "Collateral Agent"). Defined
terms used herein and not otherwise defined herein shall have the meaning given
to them in the "Receivables Purchase Agreement" (as hereinafter defined).
WHEREAS, the Seller, the Servicer, the Financial Institutions,
the Conduits, the Managing Agents and the Collateral Agent are parties to the
Receivables Purchase Agreement dated as of June 25, 1999, as amended by the
First Amendment thereto dated as of September 29, 1999 and the Second Amended
thereto dated as of December 6, 1999 (the "Receivables Purchase Agreement");
WHEREAS, the Seller and the Servicer have requested that the
Financial Institutions, the Conduits, the Managing Agents and the Collateral
Agent waive the "Specified Default" (as defined below) under the Receivables
Purchase Agreement; and
WHEREAS, the parties hereto have agreed to amend the Receivables
Purchase Agreement and waive the Specified Default on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to the Receivables Purchase Agreement. Effective as
of the date first above written and subject to the execution of this Amendment
by the parties hereto and the satisfaction of the conditions precedent set forth
in Section 3 below, the Receivables Purchase Agreement shall be and hereby is
amended as follows:
a. Section 4.1 of the Receivables Purchase Agreement is hereby
amended to add, at the conclusion of the first sentence thereof, the following:
"provided, however, that each Purchaser Interest of a Conduit which is funded
through Pooled Commercial Paper shall accrue
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Yield at the applicable CP Rate for each day during each Accrual Period that any
Capital in respect of such Purchaser Interest is outstanding."
b. Section 4.3(a) of the Receivables Purchase Agreement is hereby
amended to delete the first sentence thereof in its entirety and to substitute
therefor the following: "With consultation from each related Managing Agent,
Seller shall from time to time request Tranche Periods for the Purchaser
Interests (other than Purchaser Interests which are funded through Pooled
Commercial Paper, the Tranche Periods for which shall be the same as the Accrual
Period); provided, however, that no more than fifteen (15) Tranche Periods shall
be outstanding at any one time.
c. Exhibit I of the Receivables Purchase Agreement is hereby
amended to add the following new definition in the appropriate alphabetical
locations:
"Pooled Commercial Paper" means Commercial Paper notes of a
Conduit subject to any particular pooling arrangement by such Conduit but
excluding Commercial Paper issued by a Conduit for a tenor and in an amount
specifically requested by any Person in connection with any agreement effected
by such Conduit; provided, however, that if and to the extent that the Seller
requests a Conduit to issue Commercial Paper notes with particular tranche
periods and the related Managing Agent agrees to such request, such Commercial
Paper notes shall not constitute Pooled Commercial Paper."
d. The definition of "Broken Funding Costs" in Exhibit I of the
Receivables Purchase Agreement is hereby amended to insert, after the phrase
"remainder of the Tranche Periods", the following parenthetical: "(or, in the
case of Purchaser Interests funded through Pooled Commercial Paper, the tranche
periods for such Pooled Commercial Paper)".
e. The definition of "CP Tranche Period" in Exhibit I of the
Receivables Purchase Agreement is hereby amended to provide, at the conclusion
thereof, the following: "provided, however, that the CP Tranche Period for any
Purchaser Interest funded through Pooled Commercial Paper shall be (i) the date
from which such Purchaser Interest ceases to be allocated to a CP Tranche Period
pursuant to Section 1.2 until the last Business Day of the Accrual Period in
which such CP Tranche Period ended and (ii) thereafter each Accrual Period."
f. The definition of "CP Rate" in Exhibit I of the Receivables
Purchase Agreement is hereby amended by inserting the following at the
conclusion thereof:
"Notwithstanding the foregoing, with respect to Purchaser Interests
funded through Pooled Commercial Paper, the CP Rate for any CP Tranche
Period means:
(i) in the case of Liberty Street, the per annum rate equivalent to the
weighted average cost (as determined by its Managing Agent and which
shall include commissions of placement agents and dealers, incremental
carrying costs incurred with respect to Pooled Commercial Paper maturing
on dates other than those on which corresponding funds are received by
Liberty Street, other borrowings by Liberty Street (other than under any
commercial paper program support agreement) and any other costs
associated with the issuance of Pooled Commercial Paper) of or related
to the issuance of Pooled Commercial Paper that are allocated, in whole
or in part, by Liberty Street or its
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Managing Agent to fund or maintain its Purchaser Interests (and which
may be also allocated in part to the funding of other assets of Liberty
Street) during such CP Tranche Period; provided, however, that if any
component of such rate is a discount rate, in calculating the "CP Rate"
for Liberty Street for such Purchaser Interest for such CP Tranche
Period, Liberty Street shall for such component use the rate resulting
from converting such discount rate to an interest-bearing equivalent
rate per annum; and
(ii) in the case of PREFCO and Falcon, for each day during the
related CP Tranche Period, the sum of (a) discount accrued on Pooled
Commercial Paper of such Conduit on such day, plus (b) any and all
accrued commissions in respect of placement agents and Commercial Paper
dealers, and issuing and paying agent fees incurred, in respect of such
Pooled Commercial Paper for such day, plus (iii) other costs associated
with funding small or odd-lot amounts with respect to all receivable
purchase facilities which are funded by Pooled Commercial Paper of such
Conduit for such day, minus (iv) any accrual of income net of expenses
received on such day from investment of collections received under all
receivable purchase facilities funded substantially with Pooled
Commercial Paper, minus (v) any payment received on such day net of
expenses in respect of Broken Funding Costs related to the prepayment of
any receivables interest of such Conduit pursuant to the terms of any
receivable purchase facilities funded substantially with Pooled
Commercial Paper, as calculated by its Managing Agent on the tenth
(10th) Business Day immediately preceding each Settlement Date based on
the aggregate amount of such costs for the applicable CP Tranche Period
and the number of days during which Capital was outstanding during such
period and notified to the Seller for each of PREFCO and Falcon, without
the need to express such CP Rate as a per annum rate. In addition to the
foregoing costs, if Seller shall request any Incremental Purchase during
any period of time determined by the Agent in its sole discretion to
result in incrementally higher costs of Pooled Commercial Paper
applicable to such Incremental Purchase, the Capital of the Purchaser
Interest associated with any such Incremental Purchase shall, during
such period, be deemed to be funded by PREFCO and/or Falcon, as
applicable, in a special pool (which may include capital associated with
other receivable purchase facilities) for purposes of determining the CP
Rate applicable only to such special pool and charged each day during
such period against such Capital; and
(iii) with respect to any other Conduit which elects to fund
Purchaser Interests through Pooled Commercial Paper, such rate as may be
mutually agreed upon in writing by the Seller, such Conduit and such
Conduit's Managing Agent and notified in writing to the other parties
hereto."
g. The definition of "Designated Obligor" in Exhibit I of the
Receivables Purchase Agreement is hereby deleted in its entirety and the
following new definition is substituted therefor:
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"Designated Obligor" means Rite Aid or an Obligor indicated by
the Collateral Agent to Seller in writing.(1)
h. The definition of "Liquidity Termination Date" in Exhibit I of
the Receivables Purchase Agreement is hereby amended to delete the words "June
23, 2000" and to substitute therefor the words "June 15, 2001".
i. The definition of "Special Concentration Limit" in Exhibit I
of the Receivables Purchase Agreement is hereby amended to add the following
language immediately before the period at the end thereof:
"; provided, further, that notwithstanding the foregoing, the
Special Concentration Limit for Albertson's (American Stores and Osco Drug) and
for Wal-Mart shall be the lesser of (i) the applicable percentage set forth
above multiplied by the aggregate Outstanding Balance of Eligible Receivables
(net of all Earned Discounts and quarterly volume rebates) at such time and (ii)
$175,000,000."
j. The definition of "Special Obligor" in Exhibit I of the
Receivables Purchase Agreement is hereby deleted in its entirety and the
following definition is substituted therefor:
"Special Obligor" means Albertson's (American Stores and Osco
Drug), CVS Corp., Wal-Mart and such other Special Obligors as may be designated
by the managing Agents from time to time.
k. Exhibit IV of the Receivables Purchase Agreement is hereby
deleted in its entirety and the Exhibit IV attached as Schedule 1 hereto is
substituted therefor.(2)
2. Waiver. Effective as of the date first above written and
subject to the execution of this Amendment by the parties hereto and the
satisfaction of the conditions precedent set forth in Section 3 below, the
parties hereby agree to waive at all times prior to and including July 17, 2000,
the Seller's failure to obtain a Collection Account Agreement with respect to
the Collection Account at Bank of America, N.A. identified on Schedule 1 to this
Amendment, as required by Sections 5.1(1), 7.1(j), 7.2(b) and 8.2(b) of the
Receivables Purchase Agreement (the "Specified Default").
3. Conditional Precedent. This Amendment shall become effective
as of the date above written if and only if the Managing Agents have received:
a. duly executed originals of this Amendment from each of the
parties listed on the signature pages hereto; and
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(1) Please note that the effect of this change is to remove Receivables of Rite
Aid from the definition of "Eligible Receivable" by operation of clause (i)(c)
thereof.
(2) Please note that Exhibit IV has been revised to delete the reference to the
lock-box at Am South Bank and to include a reference to the new blocked account
at Bank of America, N.A.
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b. a duly executed Amended and Restated Fee Letter providing an
increase to the Administration Fee set forth therein.
4. Representations and Warranties of the Seller Parties. Each of
the Seller Parties hereby represents and warrants as follows:
a. This Amendment and the Receivables Purchase Agreement, as
amended hereby, constitute legal, valid and binding obligations of such Seller
Party and are enforceable against such Seller Party in accordance with their
terms.
b. Upon the effectiveness of this Amendment, each Seller Party
hereby reaffirms all representations and warranties made in the Receivables
Purchase Agreement, and to the extent the same are not amended hereby, agrees
that all such representations and warranties shall be deemed to have been remade
as of the date of delivery of this Amendment, unless and to the extent that any
such representation and warranty is stated to relate solely to an earlier date,
in which case such representation and warranty shall be true and correct as of
such earlier date.
5. Reference to and Effect on the Receivables Purchase Agreement
a. Upon the effectiveness of Section 1 hereof, on and after the
date hereof, each reference in the Receivables Purchase Agreement to "this
Receivables Purchase Agreement," "hereunder," "hereof," "herein" or words of
like import shall mean and be a reference to the Receivables Purchase Agreement
as amended hereby.
b. The Receivables Purchase Agreement, as amended hereby, 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.
c. Except as expressly provided herein, the execution, delivery
and effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Managing Agents, the Financial Institutions or the
Collateral Agent, nor constitute a waiver of any provision of the Receivables
Purchase Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
6. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to the conflict of
law provisions) of the State of New York.
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.
8. Counterparts. This Amendment may be executed by one or more of
the parties to the Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered on the date first above written.
CGSF FUNDING CORPORATION, as the Seller
By:_____________________________________
Name:
Title:
McKESSON HBOC, INC., as the Servicer
By:_____________________________________
Name:
Title:
PREFERRED RECEIVABLES FUNDING
CORPORATION, as a Conduit
By:_____________________________________
Authorized Signatory
FALCON ASSET SECURITIZATION
CORPORATION, as a Conduit
By:_____________________________________
Authorized Signatory
BLUE RIDGE ASSET FUNDING CORPORATION, as a
Conduit
By: Wachovia Bank, N.A. as Attorney-In-Fact
By:_____________________________________
Name:
Title:
Signature Page to Third Amendment and Second Waiver
to McKesson RPA
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LIBERTY STREET FUNDING CORP., as a Conduit
By:_____________________________________
Name:
Title:
BANK ONE, NA (Main Office Chicago) (formerly
known as The First National Bank of
Chicago), as a Committed Purchaser for
PREFCO and Falcon, a Financial Institution,
a Managing Agent and as Collateral Agent
By:_____________________________________
Name:
Title:
WACHOVIA BANK, N.A., as a Committed
Purchaser for Blue Ridge, a Financial
Institution and a Managing Agent
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Committed
Purchaser for Liberty Street, a Financial
Institution and a Managing Agent
By:_____________________________________
Name:
Title:
Signature Page to Third Amendment and Second Waiver
to McKesson RPA