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EXHIBIT 4.15
AMENDMENT NO. 3 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NO. 3 (this "Amendment") dated as of June 16, 2000 to the
TRANSFER AND ADMINISTRATION AGREEMENT, dated as of June 18, 1999 (as amended by
Amendment No. 1 dated September 15, 1999 and Amendment No. 2 dated as of
December 15, 1999, the "Agreement"), by and among KCH FUNDING, L.L.C., a
Delaware limited liability company, as transferor (in such capacity, the
"Transferor"), UNOVA, INC., a Delaware corporation, as the parent of the
Transferor (in such capacity, the "Parent") and as servicer (in such capacity
the "Servicer"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation (the
"Company"), BANK OF AMERICA N.A., a national banking association ("Bank of
America"), as Lead Arranger, as agent for the Company and the Bank Investors (in
such capacity, the "Agent"), as Administrative Agent and as Bank Investor.
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto have entered into the Agreement whereby
the Transferor may convey, transfer, and assign from time to time undivided
interests in certain accounts receivable, and the Company may, and the Bank
Investors, if requested, shall accept such conveyance, transfer and assignment
of such undivided percentage interests, subject to the terms and conditions of
the Agreement; and
WHEREAS, the parties to the Agreement desire to make a certain
amendments to the Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Except as otherwise stated herein, capitalized terms
not defined herein shall have the respective meanings assigned to them in the
Agreement.
2. Amendments to the Agreement.
(a) Section 1.1 of the Agreement is hereby amended by amending
the definition of "Commitment Termination Date" to read in its entirety as
follows:
"Commitment Termination Date" means June 16, 2001, or such later
date to which the Commitment Termination Date may be extended by
the Transferor, the Agent and the Bank Investors not later than
thirty (30) days prior to the then current Commitment Termination
Date.
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(b) Section 1.1 of the Agreement is further amended by amending
the definition of "Loss Percentage" to read in its entirety as follows:
"Loss Percentage" means, on any given day the greatest of (i) 2.0
times the highest Loss-to-Liquidation Ratio as of the last day of
each of the twelve (12) calendar months preceding the then
current month, (ii) 4 times the highest Concentration Factor of
all Designated Obligors (exclusive of Class 2 Obligors, Class 3
Obligors and Special Concentration Obligors), or (iii)
$10,000,000.
(c) Section 1.1 of the Agreement is further amended by amending
the definition of "Special Concentration Obligors" to read in its entirety as
follows:
"Special Concentration Obligors" means each Obligor listed in
Annex 1 hereto.
(d) Annex 1 to the Agreement is hereby amended to read in its
entirety as set forth in Exhibit A hereto.
3. Representations and Warranties. To induce the Company and the
Bank Investors to enter this Amendment, each of the Transferor and the Parent
hereby represents and warrants (each as to itself) as of the Effective Date (as
hereinafter defined) that:
(a) it has the power, authority and legal right to make and
deliver this Amendment and to perform its obligations under the Agreement, as
amended by this Amendment, without any notice, consent, approval or
authorization not already obtained, and that it has taken all necessary action
to authorize the same.
(b) the making and delivery of this Amendment and the
performance of the Agreement, as amended by this Amendment, do not violate any
provision of law or any regulation, or its charter or by-laws, or result in the
breach of or constitute a default under or require any consent under any
indenture or other agreement or instrument to which it is a party or by which it
or any of its properties may be bound or affected. The Agreement, as amended by
this Amendment, constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as the enforceability thereof
may be limited by any applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally.
(c) the representations and warranties made by it contained in
any Transaction Document are true and correct on and as of the date of this
Amendment and after giving effect hereto.
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(d) no Termination Event or Potential Termination Event has
occurred and is continuing under the Agreement as of the date of this Amendment
and after giving effect hereto.
4. Conditions to Closing. On or prior to the Effective Date, the
Agent shall have received the payment of all fees due pursuant to the Fee
Letter, dated as of June 6, 2000, among the Transferor, the Parent, the Company,
and the Agent.
5. Effective Date. The effective date of this Amendment (the
"Effective Date") is June 16, 2000.
6. Reference to and Effect on the Transaction Documents. On and
after the Effective Date each reference in the Agreement to "This Agreement",
"hereunder", "hereof" or words of like import, and each reference in any other
Transaction Document to "the Transfer and Administration Agreement",
"thereunder", "thereof" or words of like import, referring to the Agreement,
shall mean and be a reference to the Agreement as amended hereby.
7. Agreement and all other Transaction Documents in Full Force and
Effect. Except as specifically amended hereby, each Transaction Document shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lender, any Bank Investor or the Agent under any
Transaction Document, nor constitute a waiver of any provision of any
Transaction Document.
8. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original and all of which taken together
shall constitute a single instrument with the same effect as if the signatures
thereto and hereto were upon the same instrument.
9. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Xxxxx X. Xxxxx
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Vice President
KCH FUNDING, L.L.C.,
as Transferor
By: /s/ Xxxxx X. Xxxx, Xx.
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Treasurer
UNOVA, INC.,
as Parent and as Servicer
By: /s/ Xxxxx X. Xxxx, Xx.
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Vice President and Treasurer
BANK OF AMERICA, N.A., as Agent
and a Bank Investor
By: /s/ Xxxxxx X. Xxxx
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EXHIBIT A
Annex 1
Special Concentration Obligors
Name of Designated Obligor Concentration Factor Xxxxx'x Rating S&P Rating
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General Motors* 15% A2 A
Ford* 15% A2 A
Daimler Chrysler* 15% A2 A+
Caterpillar 10% A2 A+
Cummins Engine 7% Baa1 BBB+
*If the long-term unsecured debt obligation of such Special Concentration
Obligor as rated by Moody's or Standard & Poor's falls to Baa2 or BBB or below,
respectively, then the Concentration Factor will be reduced to ten percent (10%)
for such Special Concentration Obligor.
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