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EXHIBIT 99.2
WAIVER AND AMENDMENT
THIS WAIVER AND AMENDMENT (this "AMENDMENT") is entered into as of the 21st
day of September, 1998, by and among Flexible Funding Corp. (the "SELLER"),
Falcon Asset Securitization Corporation ("FALCON") and The First National Bank
of Chicago, individually ("FIRST CHICAGO") and as agent (the "AGENT") with
respect to that certain Receivables Purchase Agreement dated as of August 22,
1996 by and among the parties hereto (the "RPA"). Capitalized terms used and not
otherwise defined herein are used with the meanings attributed thereto in the
RPA.
W I T N E S S E T H:
WHEREAS, the parties wish to waive certain Servicer Defaults that have
occurred under the RPA; and
WHEREAS, in addition to such waivers, the parties wish to amend the
RPA in certain respects;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Waivers. Each of the Agent and the Purchasers hereby waives any
Servicer Default that may have resulted under Section 7.1(a), 7.1(c) and/or
7.1(g) of the RPA from the aggregate Receivable Interests exceeding 100% at any
time during the months of October 1997, November 1997, December 1997, January
1998, April 1998, May 1998, June 1998 and July 1998.
2. Amendments.
2.1. Clause (4) of the definition of "ELIGIBLE RECEIVABLE" set forth
in Exhibit I to the RPA is hereby amended to delete "30" where it appears and to
substitute "60" in lieu thereof.
2.2. Clauses (c) and (e) of the definition of "EXCESS CONCENTRATION
BALANCES" set forth in Exhibit I to the RPA are hereby amended and restated in
their entirety to read as follows:
(c) (i) with respect to Receivables owing from natural persons
resident in -- or corporations or other business entities with their chief
executive offices in -- a province of Canada other than Quebec, 5% of the
aggregate Outstanding Balance of all Eligible Receivables, and (ii) with
respect to Receivables owing from all other Foreign Obligors, 5% of the
aggregate Outstanding Balance of all Eligible Receivables;
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(e) (i) with respect to Receivables arising under Contracts that
require payment within 31-60 days after the original invoice date therefor,
10% of the aggregate Outstanding Balance of all Eligible Receivables and
(ii) with respect to all Receivables arising under Xxxx and Hold
arrangements, 5% of the aggregate Outstanding Balance of all Eligible
Receivables.
2.3. The following new definitions are hereby inserted in their
appropriate alphabetical order into Exhibit I to the RPA:
"REPORTING DATE" means the sixth (6th) Business Day after Friday of
each week.
"SETTLEMENT DATE" means a Business Day not later than one (1) Business
Day after each Reporting Date.
2.4. The second sentence of Section 1.10 of the RPA is hereby amended
and restated in its entirety to read as follows:
If, on any Friday, the aggregate Receivable Interests of the
Purchasers exceed 100%, the Seller shall pay to the Agent not later than
the immediately succeeding Settlement Date an amount to be applied to
reduce the Capital of the Receivable Interests, such that after giving
effect to such payment, the aggregate of the Receivable Interest equals or
is less than 100%.
2.5. Section 6.5(a) of the RPA is hereby amended and restated in its
entirety to read as follows:
(a) Not later than each Reporting Date, the Servicer shall prepare
and forward to the Agent a Weekly Report.
2.6. Sections 7.1(a), (b), (c) and (g) are hereby amended and restated
in their entirety to read, respectively, as follows:
(a) The Servicer or the Seller shall fail to make any payment or
deposit when required hereunder and, EXCEPT FOR A PAYMENT DUE UNDER SECTION
1.10, such failure shall remain unremedied for one (1) Business Day
following the occurrence thereof.
(b) The Servicer or the Seller shall fail to deliver any Weekly
Report ON OR BEFORE EACH REPORTING DATE, or THE SERVICER OR THE SELLER
SHALL FAIL TO DELIVER any Monthly Report within two (2) Business Days after
the same is due.
(c) The Servicer or the Seller shall fail to perform or observe
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any other term, covenant or agreement hereunder (other than as referred to
in ANY OTHER SUBSECTION OF THIS SECTION 7.1) and such failure shall remain
unremedied for five (5) Business Days following written notice thereof to
the Servicer or the Seller, as applicable.
(g) The aggregate Receivable Interests hereunder shall at any time
exceed 100% AND SUCH EXCESS SHALL CONTINUE UNREMEDIED BEYOND THE SETTLEMENT
DATE IMMEDIATELY FOLLOWING THE REPORTING DATE WHEN SUCH EXCESS IS FIRST
REQUIRED TO BE REPORTED.
3. Representations and Warranties. In order to induce the Agent and
the Purchasers to enter into this Amendment, the Seller hereby represents and
warrants to the Agent and the Purchasers that (a) this Amendment has been duly
authorized, executed and delivered by the Seller and is enforceable against the
Seller in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally, and (b) after giving
prospective effect to the waivers and amendments set forth herein, each of the
representations and warranties set forth in Section 3.1 of the RPA will be true
and correct as of the date hereof, and no Servicer Default or Potential Servicer
Default will exist and be continuing.
4. Effectiveness. This Amendment will become effective when each of
the parties hereto has duly executed a counterpart hereof and delivered such
executed counterpart to the Agent.
5. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.
(b) Reaffirmation. Except as expressly modified hereby, the RPA
remains unaltered and in full force and effect, and is hereby ratified and
confirmed.
(c) Counterparts; Severability. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same Agreement. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date
hereof.
FLEXIBLE FUNDING CORP.
By: /s/ R. Xxxxxxx Xxxxxxx
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Name: R. Xxxxxxx Xxxxxxx
Title: Vice President, Finance & Admn.
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO,
as an Investor and as Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
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Authorized Agent
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