Exhibit 4(h)
EXECUTION COPY
AMENDMENT NO. 4 OF RECEIVABLES PURCHASE AGREEMENT
AMENDMENT NO. 4, dated as of January 1, 1998 this
"Amendment"), to the Receivables Purchase Agreement, dated as of
November 15, 1994, as amended and restated as of December 29, 1995,
and as amended as of June 27, 1996, as of September 6, 1996 and as of
June 27, 1997 (the "Agreement") among INTERCO RECEIVABLES CORP. (the
"Issuer"), and CREDIT LYONNAIS NEW YORK BRANCH ("CL-NY"), as agent
(the "Agent") for the Investors.
R E C I T A L S
WHEREAS, the Seller, the Issuer and the Agent have agreed,
subject to the terms and conditions of this Amendment, to amend the
Agreement as hereinafter set forth.
Terms used herein but not defined herein shall have the
meaning assigned thereto in the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Amendment of Agreement. The Agreement shall be and
is hereby amended, as of the date hereof (subject to the satisfaction
of the conditions precedent set forth in Section 2 hereof), as
follows:
A. The definition of "CP Rate" in Exhibit I shall be
amended to provide in its entirety as follows:
"CP Rate" for any Fixed Period for any Receivable
Interest means, to the extent the Issuer funds such
Receivable Interest for such Fixed Period by issuing
commercial paper, the rate (or if more than one rate, the
weighted average of the rates) at which commercial paper
notes of the Issuer having a term equal to such Fixed period
and to be issued to fund such Receivable Interest may be
sold by any placement agent or commercial paper dealer
selected by the Agent on behalf of the Issuer, as agreed
between each such agent or dealer and the Agent and
notified by the Agent to the Servicer; provided if the
rate (or rates) as agreed between any such agent or
dealer and the Agent with regard to any Fixed Period for
any Receivable Interest is a discount rate (or rates),
then such rate shall be the rate (or if more than one
rate, the weighted average of the rates) resulting from
converting such discount rate (or rates) to an interest-
bearing equivalent rate per annum.
B. The definition of "Action" in Exhibit I shall be
amended to provide in its entirety as follows:
"Action" means Action Industries, Inc., a Mississippi
corporation.
2. A. Conditions Precedent to Effectiveness of
Amendment. The effectiveness of this Amendment is subject to the
conditions precedent that the Agent shall have received, on or before
the date hereof, (a) an amendment to the Originator Purchase
Agreement, in form and substance satisfactory to the Agent, duly
executed by the parties thereto, and evidence that all of the
conditions precedent to the effectiveness of such amendment have been
satisfied, and (b) the written statement from each of the Relevant
Rating Agencies required by Section 4.01 of the Agreement.
B. Conditions Subsequent to Effectiveness of
Amendment. The effectiveness of this Amendment is subject to the
conditions subsequent that the Issuer and the Agent shall have
received each of the following, in form and substance satisfactory to
the Issuer and the Agent:
(i) A true and complete copy of the Credit and
Collection Policy (the Policy ) adopted by Action Merger Sub, Inc. or
its successor, which Policy shall require that Action Merger Sub, Inc.
or its successor shall originate and/or service any and all
Transferred Receivables in accordance with standards of origination
and servicing customary for prudent originators or servicers of
similar receivables in the industry and, in any event, in accordance
with standards of origination and servicing acceptable to the
Purchaser or its assignee.
(ii) A certificate of the chief executive officer or
chief operating officer of Action Merger Sub, Inc. or its successor
certifying that Action Merger Sub, Inc. has adopted and effectively
implemented such Credit and Collection Policy (including without
limitation employment of personnel having adequate experience in
origination and servicing and the implementation and maintenance of
adequate computer and data management systems).
3. Execution in Counterparts. This Amendment may be
executed in any number of 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 amendment. The delivery of a signed
signature page to this Amendment by telecopy transmission shall
constitute due execution and delivery of this Amendment for all
purposes.
4. Agreement in Full Force and Effect. Except as
amended by this Amendment, all of the provisions of the Agreement are
ratified and confirmed in all respects and shall remain in full force
and effect in accordance with their terms.
5. Consent to Amendment of Originator Purchase
Agreement. Pursuant to paragraph (n) of Exhibit IV to the Agreement,
the Agent hereby consents to the Amendment, as of the date hereof, of
the Originator Purchase Agreement, and the Amendment, as of the date
hereof, of the Interco Agreement, in each case in the form previously
delivered to the Agent.
6. References to Agreement. From and after the date
hereof, (a) all references in the Agreement to "this Agreement",
"hereof", "herein", or similar terms and (b) all references to the
Agreement in each agreement, instrument and other document executed or
delivered in connection with the Agreement, shall mean and refer to
the Agreement, as amended by this Amendment.
7. Further Assurances. The parties hereto agree to
execute and deliver any and all further agreements, certificates and
other documents reasonably necessary to implement the provisions of
this Amendment.
8. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the law of the State of New York
without giving effect to the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties each have caused this
Amendment to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
CREDIT LYONNAIS
NEW YORK BRANCH, as Agent
By: ▇.▇. ▇▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice-President
INTERCO RECEIVABLES CORP.
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
