EX-101 INSTANCE DOCUMENT

EX-10.5 2 c08682exv10w5.htm EXHIBIT 10.5 Exhibit 10.5

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.

1.11 The parties hereto (x) acknowledge that as of the date of this Amendment, Deposit Account number ###-###-#### 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.

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.

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.

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/ Peter Gaylord
	Name:	Peter Gaylord
	Title:	President & Treasurer

MEDCO HEALTH SOLUTIONS, INC., as Servicer
By:	/s/ Leonard Brooks
	Name:	Leonard Brooks
	Title:	Assistant Treasurer