EXHIBIT 10.18
FIRST AMENDMENT
Dated as of August 31, 2001
To
RECEIVABLES FINANCING AGREEMENT
Dated as of December 15, 2000
This FIRST AMENDMENT (this "Amendment"), dated as of August 31, 2001,
is entered into among KBK ACCEPTANCE COMPANY LP, a Texas limited partnership
(the "Borrower"), KBK FINANCIAL, INC., a Delaware corporation ("KBK"), as the
initial servicer (in such capacity, the "Servicer"), AUTOBAHN FUNDING COMPANY
L.L.C., a Delaware limited liability company (together with its successors and
permitted assigns, the "Lender"), DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG ("DG
Bank"), as administrative agent for the Lender (in such capacity, the
"Administrative Agent"), and BANK ONE, N.A. ("Bank One"), as collateral agent
for the Secured Parties (in such capacity, the "Collateral Agent").
RECITALS
WHEREAS, the parties hereto have entered into a certain Receivables
Financing Agreement dated as of December 15, 2000 (as amended, the "Receivables
Financing Agreement");
WHEREAS, the parties hereto wish to make certain changes to the
Receivables Financing Agreement as herein provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and the Receivables Financing Agreement, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein are used as defined in the Receivables Financing Agreement.
SECTION 2. Changes to Receivables Financing Agreement. Effective as of
the date that the conditions set forth in Section 3 hereof are met, the
Receivables Financing Agreement is hereby amended as follows:
2.1. Clause (a) of the definition of "Borrowing Base" in
Section 1.1 of the Receivable Financing Agreement is hereby amended and
restated in its entirety to be, and to read, as follows:
(a) the lesser of (A) 92% of the difference of (i) of the
aggregate Outstanding Balance of all Eligible
Commercial Loan Receivables, minus (ii) the Excess
Commercial Loan Concentration Amount and (B) 82% of
the result of (i) the aggregate Outstanding Balance
of all Eligible Commercial Loan Receivables, plus
(ii) 50% (or such lesser percentage specified in
writing by the Administrative Agent with the consent
of Royal (which consent shall not be
unreasonably withheld), in its sole discretion, with
respect to one or more Commercial Loan Receivables)
of the Outstanding Balance of each Commercial Loan
Receivable that is a Defaulted Receivable (and would
be an Eligible Receivable but for clause (e) of the
definition of Eligible Receivable); provided,
however, that a Commercial Loan Receivable that is a
Defaulted Receivable and has been transferred by the
Borrower to another special purpose entity shall
continue to be included in this clause (ii) to the
extent the proceeds thereof are payable, directly or
indirectly, to Borrower, minus (iii) the Excess
Commercial Loan Concentration Amount, plus
2.2. All existing reference in the Receivables Financing
Agreement to the "Default Ratio" are hereby changed to "Net Loss Ratio"
including, without limitation, the definition thereof.
2.3. Section 1.1 of the Receivables Financing Agreement is
hereby amended by adding a new definition, as alphabetically
appropriate, to be, and to read, as follows:
"Default Ratio" means the ratio (expressed as a percentage)
computed as of the last day of each Collection Period equal to
the quotient of (a) two times the difference of (i) the
aggregate Outstanding Balance of all Commercial Loan
Receivables that became Defaulted Receivables during the six
preceding Collection Periods (including the current Collection
Period), minus (ii) the amount of any cash recoveries received
with respect to such Defaulted Receivables during such
six-month period, divided by (b) the average of the aggregate
Outstanding Balance of all Eligible Commercial Loan
Receivables on the last day of each of the six Collection
Periods preceding the current Collection Period.
2.4. Paragraph (g) in Section 10.1 of the Receivables
Financing Agreement is hereby amended by adding a new clause (iii),
immediately prior to the period at the end thereof, to be, and to read,
as follows:
or (iii) the Default Ratio shall equal or exceed 7.5%
2.5. For purposes of calculating the Net Loss Ratio and the
Default Ratio, it shall be assumed that no Commercial Loan Receivables
became Defaulted Receivables during the January through and including
June, 2001 Collection Periods.
2.6. Exhibits C and D of the Receivables Financing Agreement
are hereby amended and restated in their entirety as set forth in the
Exhibits C and D, respectively, hereto.
SECTION 3. Conditions Precedent. This Amendment shall become effective
as of the date hereof when the Administrative Agent shall have received (i) an
original counterpart (or counterparts)
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of this Amendment, executed and delivered by each of the parties thereto, or
other evidences satisfactory to the Administrative Agent of such execution and
delivery, (ii) evidence that all amendment or structuring fees payable in
connection with this Amendment have been paid and (iii) such other information,
certificates, opinions and agreements as the Administrative Agent shall
reasonably request.
SECTION 4. Miscellaneous.
4.1. Reaffirmation of Covenants, Representations and
Warranties. Upon the effectiveness of this Amendment, each of the
Borrower and the Servicer hereby reaffirms all covenants,
representations and warranties made in the Receivables Financing
Agreement and the other Transaction Documents and agrees that all such
covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
4.2. Representations and Warranties. Each of the Borrower and
the Servicer hereby represents and warrants that (i) this Amendment
constitutes a legal, valid and binding obligation of each Person,
enforceable against it in accordance with its terms and (ii) upon the
effectiveness of this Amendment, no Termination Event or Unmatured
Termination Event shall exist.
4.3. References to Receivables Financing Agreement. Upon the
effectiveness of this Amendment, each reference in the Receivables
Financing Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to the
Receivables Financing Agreement as amended hereby, and each reference
to the Receivables Financing Agreement in any other document,
instrument or agreement executed and/or delivered in connection with
the Receivables Financing Agreement shall mean and be a reference to
the Receivables Financing Agreement as amended hereby.
4.4. Effect on Receivables Agreement. Except as specifically
amended above, the Receivables Financing Agreement 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.
4.5. Governing Law. This Amendment, including the rights and
duties of this parties hereto, shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
4.6. Successors and Assigns. This Amendment shall be binding
upon all inure to the benefit of the parties hereto and their
respective successors and assigns.
4.7. Headings. The Section headings in this Amendment are
inserted for convenience of reference only and shall not affect the
meaning or interpretation of this Amendment or any provision hereof.
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4.8. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed
to be an original and all of which shall constitute together but one
and the same agreement.
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