EXHIBIT 10.03
[***] indicates the omission of confidential portions for which confidential
treatment has been requested. Such confidential information has been filed
separately with the Commission.
OMNIBUS LIMITED WAIVER AND
SECOND OMNIBUS AMENDMENT AND
REAFFIRMATION OF PERFORMANCE GUARANTY
DATED AS OF SEPTEMBER 24, 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.
LIMITED WAIVER AND
AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AGREEMENT
LIMITED WAIVER AND
AMENDMENT NO. 2 TO RECEIVABLES SALE AGREEMENT
OMNIBUS LIMITED WAIVER AND
SECOND OMNIBUS AMENDMENT AND
REAFFIRMATION OF PERFORMANCE GUARANTY
This OMNIBUS LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT AND
REAFFIRMATION OF PERFORMANCE GUARANTY (this "OMNIBUS AMENDMENT"), dated as of
September 24, 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, which amended and restated that certain
Receivables Purchase Agreement, dated as of June 29, 2000, as amended from time
to time (the "ORIGINAL AGREEMENT"), and which Amended and Restated Receivables
Purchase Agreement has been amended by that certain Omnibus Amendment thereto,
dated as of August 18, 2004 (as so amended, the "RECEIVABLES PURCHASE
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 and waive 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 LIMITED WAIVER AND SECOND 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, the Receivables Sale Agreement is hereby
amended by (i) deleting the reference to "90 days" where it appears in Section
4.1 (a)(i) of the Receivables Sale Agreement and replacing such reference with
"120 days" and (ii) deleting the reference to "45 days" where it appears in
Section 4.l(a)(ii) of the Receivables Sale Agreement and replacing it with "60
days".
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 7.1(a) of the Receivables Purchase Agreement is hereby
amended by (i) deleting the reference to "90 days" where it appears in clause
(i) of such section and replacing such reference with "120 days" and (ii)
deleting the reference to "45 days" where it appears in clause (ii) of such
section and replacing it with "60 days".
(b) The definition of "Concentration Limit" set forth in Exhibit Ito
the Receivables Purchase Agreement is hereby amended by (i) deleting the
reference to "9%" where such percentage appears in such definition and replacing
it with "18%", such that after giving effect to such amendment, the "Special
Concentration Limit" (as defined in the definition of Concentration Limit) for
the Obligor [***] shall be 18% and (ii) inserting the following clause at the
end of the penultimate sentence of such definition:
; and provided, further, the Special Concentration Limit for the
Obligor [***] shall be automatically cancelled if, at any time, the
senior unsecured long-term debt rating of [***] shall fall below
BBB- (or is withdrawn), as determined by Standard and Poor's Ratings
Services, or shall fall below Baa3 (or is withdrawn), as determined
by Moody's Investors Service, Inc.
(c) Each of the definitions of "Dilution Horizon Ratio" "Loss
Horizon Ratio" and "Net Dilution Percentage" set forth in Exhibit Ito the
Receivables Purchase Agreement is hereby amended by amending and restating, in
its entirety, each such definition where each such definition appears therein to
read as follows:
"Dilution Horizon Ratio" means, as of the last day of any calendar
month, a percentage equal to (i) the aggregate gross sales of the
Originators during the calendar month then most recently ended
divided by (ii) the Net Receivables Balance as of the last day of
the most recently ended calendar month.
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OMNIBUS LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT
AND REAFFIRMATION OF PERFORMANCE GUARANTY
"Loss Horizon Ratio" means as of any date, an amount (expressed as a
percentage) equal to (i) the aggregate gross sales of the
Originators during the three most recently ended calendar months
divided by (ii) the Net Receivables Balance as of the last day of
the most recently ended month.
"Net Dilution Percentage" means, the greater of (i) the Dilution
Percentage and (ii) 10%.
(d) The definition of "Dilution Adjustment Percentage" set forth in
Exhibit Ito the Receivables Purchase Agreement is hereby amended by deleting
such definition there from in its entirety.
SECTION 4. Limited Waivers.
(a) Funding hereby waives any Termination Event that has occurred
beginning on or after July 1, 2004 and through the date that is thirty (30) days
following the date hereof pursuant to Section 5.1 (a)(ii) of the Receivables
Sale Agreement, solely as a result of Griffin's failure to take all actions
necessary on its part to ensure that Funding is at all times in compliance with
the covenants set forth in Section 7.l(i)(H) of the Receivables Purchase
Agreement (as required by Section 4.1(h) of the Receivables Sale Agreement);
provided, however, that the foregoing waiver shall cease to be effective if, on
or before the date that is thirty (30) days following the date hereof, Griffin
shall have failed to deliver to Funding documentation, in form and substance
satisfactory to Funding in its sole discretion, evidencing that Griffin has
taken all actions necessary on its part to ensure that Funding is in compliance
with the covenants set forth in Section 7.1 (i)(H) of the Receivables Purchase
Agreement. If the waiver provided in this Section 4(a) shall cease to be
effective pursuant to the proviso contained in the immediately preceding
sentence, Funding (or its assigns) shall have the right to reinstate, as of the
date of its first occurrence, any Termination Event that arose or would have
arisen but for such waiver.
(b) Funding hereby waives any Termination Event that has occurred
beginning on or after July 1, 2004 and through the date that is thirty (30) days
following the date hereof pursuant to Section 5.1 (a)(ii) of the Receivables
Sale Agreement, solely as a result of Griffin's failure to require each
Originator to take all actions necessary on its part to ensure that each of
Griffin and Funding is at all times in compliance with the covenants set forth
in Section 7.l(i)(H) of the Receivables Purchase Agreement pursuant to Section
3.6 of each RPSA, which failure breaches Griffin's affirmative covenant to
require each Originator to perform each of its respective obligations and
undertakings under and pursuant to the applicable RPSA (as required by Section
4.1(l) of the Receivables Sale Agreement); provided, however, that the foregoing
waiver shall cease to be effective if, on or before the date that is thirty (30)
days following the date hereof, Griffin shall have failed to deliver to Funding
documentation, in form and substance satisfactory to Funding in its sole
discretion, evidencing that each Originator has taken all actions necessary on
its part to ensure that each of Griffin and Funding is in compliance with the
covenants set forth in Section 7. l(i)(H) of the Receivables Purchase Agreement.
If the waiver provided in this Section 4(b) shall cease to be effective pursuant
to the proviso contained in the immediately preceding sentence, Funding (or its
assigns) shall have the right to reinstate, as of the date of its first
occurrence, any Termination Event that arose or would have arisen but for such
waiver.
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OMNIBUS LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT
AND REAFFIRMATION OF PERFORMANCE GUARANTY
(c) The Agent and each Purchaser hereby waive any Amortization Event
that has occurred beginning on or after July 1, 2004 and through the date that
is thirty (30) days following the date hereof pursuant to Section 9.l(a)(i)(B)
of the Receivables Purchase Agreement, solely as a result of Funding's failure
to maintain its books and records separate from those of each Cardinal Entity
and any Affiliate thereof and otherwise readily identifiable as its own assets
rather than assets of any Cardinal Entity or any Affiliate thereof (as required
by Section 7.l(i)(H) of the Receivables Purchase Agreement); provided, however,
that the foregoing waiver shall cease to be effective if, on or before the date
that is thirty (30) days following the date hereof, Funding shall have failed to
deliver to the Agent documentation, in form and substance satisfactory to the
Agent in its sole discretion, evidencing that Funding has taken all actions
necessary on its part to ensure that it is in compliance with the covenant set
forth in Section 7.l(i)(H) of the Receivables Purchase Agreement. If the waiver
provided in this Section 4(c) shall cease to be effective pursuant to the
proviso contained in the immediately preceding sentence, the Agent shall have
the right to reinstate, as of the date of its first occurrence, any Amortization
Event that arose or would have arisen but for such waiver.
(d) The Agent and each Purchaser hereby waive (A) any Amortization
Event that has occurred beginning on or after July 1, 2004 and through the date
that is thirty (30) days following the date hereof pursuant to Section 9.1(n) of
the Receivables Purchase Agreement, solely as a result of the Performance
Guarantor's failure to perform its guaranty to Funding, as required by Section 2
of the Performance Guaranty, of the full and punctual performance by (i) each
Originator to take all actions necessary on its part to ensure that each of
Griffin and Funding is at all times in compliance with the covenants set forth
in Section 7.l(i)(H) of the Receivables Purchase Agreement, (ii) Griffin to
require each Originator to take all actions necessary on its part to ensure that
each of Griffin and Funding is at all times in compliance with the covenants set
forth in Section 7.1 (i)(H) of the Receivables Purchase Agreement, and (iii)
Griffin to take all actions necessary on its part to ensure that Funding is at
all times in compliance with the covenants set forth in Section 7.1 (i)(H) of
the Receivables Purchase Agreement (such failures to perform, the "Performance
Failures") and (B) any rights that the Agent and each Purchaser may have against
the Performance Guarantor under the Performance Guaranty solely to the extent
such rights arise as a result of any Performance Failure which occurred during
the period beginning on or after July 1, 2004 and through the date that is
thirty (30) days following the date hereof; provided, however, that the
foregoing waiver shall cease to be effective if, on or before the date that is
thirty (30) days following the date hereof, Funding shall have failed to deliver
to the Agent documentation, in form and substance satisfactory to the Agent in
its sole discretion, evidencing that each Originator, Griffin and Funding have
taken all actions necessary on their part to ensure that Griffin and Funding are
in compliance with the covenant set forth in Section 7.1 (i)(H) of the
Receivables Purchase Agreement. If the waiver provided in this Section 4(d)
shall cease to be effective pursuant to the proviso contained in the immediately
preceding sentence (i) the Agent shall have the right to reinstate, as of the
date of its first occurrence, any Amortization Event that arose or would have
arisen but for such waiver, and (ii) all rights that the Agent and each
Purchaser may have against the Performance Guarantor under the Performance
Guaranty shall be reinstated.
SECTION 5. 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
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OMNIBUS LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT
AND REAFFIRMATION OF PERFORMANCE GUARANTY
force and effect with respect to each of the Receivables Sale Agreement and the
Receivables Purchase Agreement, each as amended hereby.
SECTION 6. 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 (other than those expressly waived hereby) 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).
SECTION 7. Miscellaneous.
(a) Effect; Ratification. The amendments and limited waivers 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 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.
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OMNIBUS LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT
AND REAFFIRMATION OF PERFORMANCE GUARANTY
(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 OMIMBUS 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)
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OMNIBUS LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT
AND REAFFIRMATION OF PERFORMANCE GUARANTY
IN WITNESS WHEREOF, the undersigned have caused this Omnibus
Amendment to be executed as of the date first above written.
CARDINAL HEALTH FUNDING, LLC,
as Seller
By: /s/ Glenn Martin
-----------------------------------
Name: Glenn Martin
Title: VP
GRIFFIN CAPITAL, LLC
individually and as Servicer
By: /s/ Glenn Martin
-----------------------------------
Name: Glenn Martin
Title: VP
CARDINAL HEALTH, INC.,
as Performance Guarantor
By: /s/ J. Michael Losh
-----------------------------------
Name: J. Michael Losh
Title: Chief Financial Officer
S-1
OMNIBUS LIMITED WAIVER AND SECOND 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 LIMITED WAIVER AND SECOND OMNIBUS AMENDMENT
AND REAFFIRMATION OF PERFORMANCE GUARANTY
LIBERTY STREET FUNDING CORP., as a
Conduit
By: /s/ Kevin P. Burns
-----------------------------------
Name: Kevin P. Burns
Title: Vice 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