EXHIBIT 10.02
[***] indicates the omission of confidential portions for which confidential
treatment has been requested. Such confidential information has been filed
separately with the Commission.
OMNIBUS AMENDMENT
AND
REAFFIRMATION OF PERFORMANCE GUARANTY
DATED AS OF AUGUST 18, 2004
BY AND AMONG
CARDINAL HEALTH FUNDING, LLC,
GRIFFIN CAPITAL, LLC,
THE CONDUITS PARTY HERETO,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
THE MANAGING AGENTS PARTY HERETO,
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS THE AGENT,
AND
CARDINAL HEALTH, INC.
AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT
AMENDMENT NO. 1 TO RECEIVABLES SALE AGREEMENT
OMNIBUS AMENDMENT
AND
REAFFIRMATION OF PERFORMANCE GUARANTY
This OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
(this "OMNIBUS AMENDMENT"), dated as of August 18, 2004, by and among Cardinal
Health Funding, LLC ("FUNDING"), Griffin Capital, LLC, individually and as
Servicer under and as defined in the Receivables Purchase Agreement referred to
below ("GRIFFIN" or "SERVICER"), each entity signatory hereto as a Conduit (each
a "CONDUIT " and collectively, the "Conduits"), each entity signatory hereto as
a Financial Institution (each a "FINANCIAL INSTITUTION " and, collectively with
the Conduits, the "PURCHASERS"), each entity signatory hereto as a Managing
Agent (each a "MANAGING AGENT " and collectively, the "MANAGING AGENTS"), Bank
One, NA (Main Office Chicago), as the Agent, and Cardinal Health, Inc.
("CARDINAL HEALTH").
RECITALS
Funding, Servicer, the Purchasers, the Managing Agents and the Agent
have entered into that certain Amended and Restated Receivables Purchase
Agreement, dated as of May 21, 2004 (the "RECEIVABLES PURCHASE AGREEMENT"),
which amended and restated that certain Receivables Purchase Agreement, dated as
of June 29, 2000, as amended from time to time (the "ORIGINAL AGREEMENT").
In connection with the Receivables Purchase Agreement, Griffin and
Funding entered into that certain Amended and Restated Receivables Sale
Agreement, dated as of May 21, 2004 (the "RECEIVABLES SALE Agreement").
The terms and provisions of that certain Performance Guaranty, dated
as of June 29, 2000 (as amended or otherwise modified as of the date hereof, the
"PERFORMANCE GUARANTY"), given by Cardinal Health in favor of Funding in
connection with the Original Agreement, continue to be in full force and effect.
The parties hereto desire to amend certain provisions of the
Receivables Purchase Agreement and the Receivables Sale Agreement, and Cardinal
Health desires to affirm its obligations under the Performance Guaranty, all as
more fully described herein.
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged by the parties hereto, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not defined
herein shall have the respective meanings assigned thereto in the Receivables
Purchase Agreement.
SECTION 2. Amendment to Receivables Sale Agreement. Subject to the terms
and conditions set forth herein, Section 2.1(l) of the Receivables Sale
Agreement is hereby amended and restated in its entirety to read as follows:
(1) Collections. The conditions and requirements set forth in
Section 4.1(i) have at all times been satisfied and duly performed. The names
and addresses of all Collection Banks, together with the account numbers of the
Collection Accounts of Griffin at each Collection Bank and the post office box
number or bank departmental box number (as applicable) of each Lock-Box, are
listed on Exhibit III or have been provided to the Agent in a written notice
that complies with Section 4.2(b). Griffin has not granted any Person, other
than Buyer (and its assigns) dominion and control or "control" (within the
meaning of Section 9-104 of the UCC of all applicable jurisdictions) of any
Lock-Box or Collection Account, or the right to take dominion and control or
"control" (within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions) of any such Lock-Box or Collection Account at a future time or
upon the occurrence of a future event. Griffin has taken all steps necessary to
ensure that Buyer (or its assigns) has "control" (within the meaning of Section
9-104 of the UCC of all applicable jurisdictions) over all Lock-Boxes and
Collection Accounts.
SECTION 3. Amendments to Receivables Purchase Agreement. Subject to the
terms and conditions set forth herein, the Receivables Purchase Agreement is
hereby amended as follows:
(a) Section 5.1(i) of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
(i) Collections. The conditions and requirements set forth in
Section 7.1(j) and Section 8.2 have at all times been satisfied and duly
performed. The names and addresses of all Collection Banks, together with
the account numbers of the Collection Accounts of Seller at each
Collection Bank and the post office box number or bank departmental number
of each Lock-Box, are listed on Exhibit IV or have been provided to the
Agent in a written notice that complies with Section 7.2(b). Seller has
not granted any Person, other than the Agent as contemplated by this
Agreement, dominion and control or "control" (within the meaning of
Section 9-104 of the UCC of all applicable jurisdictions) of any Lock-Box
or Collection Ac count, or the right to take dominion and control or
"control" (within the meaning of Section 9-104 of the UCC of all
applicable jurisdictions) of any such Lock-Box or Collection Account at a
future time or upon the occurrence of a future event. Each Seller Party
has taken all steps necessary
2
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
to ensure that the Agent has "control" (within the meaning of Section
9-104 of the UCC of all applicable jurisdictions) over all Lock-Boxes and
Collection Accounts.
(b) Exhibit IV of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as set forth in Annex A attached
hereto.
SECTION 4. Reaffirmation of Performance Guaranty. Cardinal Health hereby
acknowledges each of the amendments to the Receivables Sale Agreement and the
Receivables Purchase Agreement effected hereby and reaffirms that its
obligations under each of the Performance Guaranty and each other Transaction
Document to which it is a party continue in full force and effect with respect
to each of the Receivables Sale Agreement and the Receivables Purchase
Agreement, each as amended hereby.
SECTION 5. Conditions to Effectiveness of this Omnibus Amendment. This
Omnibus Amendment shall become effective as of the date hereof, subject to the
satisfaction of the following conditions:
(a) Omnibus Amendment. The Agent shall have received executed
counterparts of this Omnibus Amendment, duly executed by each of the parties
hereto.
(b) Representations and Warranties. As of the date hereof, both
before and after giving effect to this Omnibus Amendment, all of the
representations and warranties of Funding, Griffin, Servicer and Cardinal Health
contained in the Receivables Sale Agreement, the Receivables Purchase Agreement
and in each other Transaction Document, in each case, as amended hereby (other
than those that speak expressly only as of a different date) shall be true and
correct in all material respects as though made on the date hereof (and by its
execution hereof, each of Funding, Griffin, Servicer and Cardinal Health shall
be deemed to have represented and warranted such).
(c) No Amortization Event. As of the date hereof, both before and
after giving effect to this Omnibus Amendment, no Amortization Event or
Potential Amortization Event shall have occurred and be continuing (and by its
execution hereof, each of Funding and Servicer shall be deemed to have
represented and warranted such).
(d) [***] Collection Account Agreement. The Agent shall have
received a duly executed copy of that certain Fourth Amended and Restated
Collection Account Agreement, dated as of August 18, 2004, by and among Griffin,
Funding and [***], in form and substance satisfactory to the Agent, in its sole
and absolute discretion.
SECTION 6. Miscellaneous.
(a) Effect; Ratification. The amendments set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the
Receivables Purchase Agreement, the Receivables Sale Agreement, any other
Transaction Document or of any other instrument or agreement referred to
therein; or (ii) prejudice any right or remedy which any Purchaser or the Agent
may now have or may have in the future under or in connection with the
Receivables Purchase Agreement, the Receivables
3
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
Sale Agreement, any other Transaction Document or any other instrument or
agreement referred to therein. Each reference in the Receivables Purchase
Agreement or the Receivables Sale Agreement, as applicable, to "this Agreement,"
"herein," "hereof" and words of like import shall mean such agreement, as
amended hereby, and each reference in the Transaction Documents to "Receivables
Purchase Agreement," the "Purchase Agreement" or the Receivables Purchase
Agreement or to "Receivables Sale Agreement," the "Sale Agreement" or the
Receivables Sale Agreement shall mean the Receivables Purchase Agreement or the
Receivables Sale Agreement, as applicable, as amended hereby. This Omnibus
Amendment shall be construed in connection with and as part of the Receivables
Purchase Agreement and the Receivables Sale Agreement, as applicable, and all
terms, conditions, representations, warranties, covenants and agreements set
forth in each such agreement and each other instrument or agreement referred to
therein, except as herein amended, are hereby ratified and confirmed and shall
remain in full force and effect.
(b) Transaction Documents. This Omnibus Amendment is a Transaction
Document executed pursuant to the Receivables Purchase Agreement and the
Receivables Sale Agreement and shall be construed, administered and applied in
accordance with the terms and provisions thereof.
(c) Costs, Fees and Expenses. Funding agrees to reimburse the Agent,
each Managing Agent and each Purchaser on demand for all costs, fees and
expenses incurred by the Agent, each Managing Agent and each Purchaser
(including, without limitation, the reasonable fees and expenses of counsels to
the Agent, each Managing Agent and each Purchaser) incurred in connection with
the preparation, execution and delivery of this Omnibus Amendment.
(d) Counterparts. This Omnibus Amendment may be executed in any
number of counterparts, each such counterpart constituting an original and all
of which when taken together shall constitute one and the same instrument.
(e) Severability. Any provision contained in this Omnibus Amendment
which is held to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or invalid without
affecting the remaining provisions of this Omnibus Amendment in that
jurisdiction or the operation, enforceability or validity of such provision in
any other jurisdiction.
(f) GOVERNING LAW. THIS OMNIBUS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
(g) WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMIT TED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS OMNIBUS AMENDMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
(Signature Pages Follow)
4
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
IN WITNESS WHEREOF, the undersigned have caused this Omni bus
Amendment to be executed as of the date first above written.
CARDINAL HEALTH FUNDING, LLC, as Seller
By: /s/ Ali Rizvi
------------------------------------
Name: Ali Rizvi
Title: President
GRIFFIN CAPITAL, LLC,
individually and as Servicer
By: /s/ Wayne Jeu
-----------------------------------
Name: Wayne Jeu
Title: President
CARDINAL HEALTH, INC.,
as Performance Guarantor
By: /s/ Dong K. Choi
------------------------------------
Name:
Title:
S-1
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
PREFERRED RECEIVABLES FUNDING
CORPORATION, as a Conduit
By: /s/ Sherri Gerner
----------------------------------
Name: Sherri Gerner
Title: Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO), as
a Financial Institution and as Agent
By: /s/ Sherri Gerner
----------------------------------
Name: Sherri Gerner
Title: Vice President
S-2
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
LIBERTY STREET FUNDING CORP., as a
Conduit
By: /s/ Andrew L. Stidd
---------------------------------
Name: Andrew L. Stidd
Title: President
THE BANK OF NOVA SCOTIA,
as a Financial Institution and as a
Managing Agent
By: /s/ Michael Eden
---------------------------------
Name: Michael Eden
Title: Director
S-3
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
Annex A
EXHIBIT IV
NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS
[***] Lock-Boxes and Collection Accounts
The following Lock-Box is maintained with [***] and deposits into Account No.
[***] maintained in the name of "Griffin Capital, LLC, as Servicer":
LOCK-BOX/ P.O. ADDRESS
Williams Drug Distributors
A Cardinal Health Company
1296 Solutions Center
Dept. 771296
Chicago, IL 60677-1002
In addition, Collections are remitted directly to the following account at
[***]: Master Account No. [***] maintained in the name of "Cardinal Health,
Inc."
[***] Collection Account
Collections are remitted directly to Account No. [***] maintained with [***] in
the name of "Cardinal Health, Inc."
[***] Lock-Boxes and Collection Accounts
The following Lock-Boxes are maintained with [***] and deposit into Account No.
[***] maintained in the name of "Griffin Capital, LLC, as Servicer":
Exhibit IV-1
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
LOCK-BOX/ P.O. ADDRESS
Cardinal Health
National Accounts
P.O. Box 402605
Atlanta, GA 30384-2605
Cardinal Health
Albuquerque Division
P.O. Box 847359
Dallas, TX 75284-7359
Cardinal Health
Houston Division
P.O. Box 847370
Dallas, TX 75284-7370
Cardinal Health
Waco Division
P.O. Box 847384
Dallas, TX 75284-7384
Cardinal Health
Auburn Division
3712 Collections Center Drive
Chicago, IL 60693-0037
Cardinal Health
Aurora Division
3740 Collections Center Drive
Chicago, IL 60693-0037
Cardinal Health
Boston Division
3763 Collections Center Drive
Chicago, IL 60693-0037
Cardinal Health
Columbus Division
3833 Collections Center Drive
Chicago, IL 60693-0038
Cardinal Health
Denver Division
3815 Collections Center Drive
Chicago, IL 60693-0038
Cardinal Health
Kansas City Division
5042 Collections Center Drive
Chicago, IL 60693-0050
Cardinal Health
Minneapolis Division
5075 Collections Center Drive
Chicago, IL 60693-0050
Exhibit IV-2
OMNIBUS AMENDMENT AND REAFFIRMATION OF PERFORMANCE GUARANTY
Cardinal Health
Salt Lake City Division
5143 Collections Center Drive
Chicago, IL 60693-0051
Cardinal Health
St. Louis Division
5279 Collections Center Drive
Chicago, IL 60693-0052
Cardinal Health
Syracuse Division
5303 Collections Center Drive
Chicago, IL 60693-0053
Cardinal Health
Wheeling Division
5490 Collections Center Drive
Chicago, IL 60693-0054
Cardinal Health
Swedesboro Division
5958 Collections Center Drive
Chicago, IL 60693-0055
Cardinal Health
Ontario Division
File #56410
Los Angeles, CA 90074-6410
Cardinal Health
Valencia Division
File #56412
Los Angeles, CA 90074-6412
Cardinal Health
Sacramento Division
File #74031
P.O. Box 60000
San Francisco, CA 94160-0001
Cardinal Health
Los Angeles Division
File #57130
Los Angeles, CA 90074-7130
[***] Collection Accounts
Collections are remitted directly to Account Nos. [***], each maintained with
[***] in the name of "Griffin Capital, LLC, as Servicer."
Exhibit IV-3