EXECUTION VERSION
Exhibit 99.1
THIRD AMENDMENT
TO
RECEIVABLES TRANSFER AGREEMENT
THIS THIRD AMENDMENT TO RECEIVABLES TRANSFER AGREEMENT, dated as of
December 10, 2004 (this "Third Amendment"), is entered into among CARCORP, INC.,
a Delaware corporation ("Transferor"), XXXXXXX & XXXXXX PRODUCTS CO., a Delaware
Corporation, individually, in its capacity as "Guarantor" and in its capacity as
collection agent (in such capacity, the "Collection Agent"), GENERAL ELECTRIC
CAPITAL CORPORATION, in its capacity as committed purchaser (in such capacity,
"GECC Committed Purchaser") and as funding agent (in such capacity, "GECC
Funding Agent"), and GENERAL ELECTRIC CAPITAL CORPORATION, in its capacity as
successor administrative agent under the Transfer Agreement referred to below
(in such capacity, "Successor Agent"), and JPMORGAN CHASE BANK, N.A., in its
capacity as existing administrative agent (in such capacity, the "Existing
Agent"), and relates to that certain Receivables Transfer Agreement, dated as of
December 20, 2001, and amended and restated as of September 24, 2002 (as so
amended and restated and as may be further amended, restated, supplemented or
otherwise modified from time to time, including, without limitation, by the
Amendment and Waiver, dated as of August 26, 2003 (the "First Amendment"), and
the Second Amendment, dated as of December 18, 2003 (the "Second Amendment"),
the "Transfer Agreement"), among Transferor, Collection Agent, GECC Committed
Purchaser, GECC Funding Agent, the other persons from time to time party thereto
as "Committed Purchasers", "Funding Agents" and "CP Conduit Purchasers", and
Existing Agent. Capitalized terms used and not otherwise defined herein have the
respective meanings assigned to them in the Transfer Agreement.
W I T N E S S E T H:
WHEREAS, immediately prior to the date hereof and the assignments described
in the next paragraph, JPMorgan Chase Bank, N.A., The Bank of Nova Scotia, and
IXIS Financial Products (f/k/a CDC Financial Products Inc.) and GECC Committed
Purchaser were the Committed Purchasers under the Transfer Agreement (the
"Existing Committed Purchasers") and the Funding Agents thereunder, and Delaware
Funding Corporation (successor by assignment to Park Avenue Receivables
Corporation), Liberty Street Funding Corp. and Eiffel Funding, LLC were the CP
Conduit Purchasers (the "Existing CP Conduit Purchasers");
WHEREAS, in accordance with the terms of the Transfer Agreement,
immediately prior to the date hereof, inter alia, each of the Existing Committed
Purchasers (other than GECC Committed Purchaser) assigned their Commitments and
their Funded Amount, if any, to GECC Committed Purchaser, and GECC Committed
Purchaser purchased each Existing CP Conduit Purchaser's Interest and CP Conduit
Funded Amount;
WHEREAS, as a result of the above-described transactions, GECC Committed
Purchaser is the only Committed Purchaser and Funding Agent party to the
Transfer Agreement, and no CP Conduit Purchasers are party to the Transfer
Agreement;
WHEREAS, as a result of the above-described transactions, Existing Agent
desires to resign as Administrative Agent and Successor Agent desires to be
appointed as successor Administrative Agent; and
WHEREAS, the parties hereto desire to consent to such resignation and
appointment and to amend the Transfer Agreement accordingly;
NOW, THEREFORE, in consideration of the above premises, Transferor,
Collection Agent, Successor Agent, Existing Agent, GECC Committed Purchaser and
GECC Funding Agent agree as follows:
Resignation and Appointment of Administrative Agent.
Existing Agent hereby notifies Transferor, Collection Agent and GECC
Funding Agent that it hereby resigns as Administrative Agent as provided under
Section 8.09 of the Transfer Agreement. Transferor, Collection Agent and GECC
Funding Agent hereby accept such resignation and agree that such notification is
sufficient under Section 8.09 of the Transfer Agreement, notwithstanding
anything to the contrary contained in such Section, including the requirement
for 30 days' prior notice of such resignation. GECC Committed Purchaser,
constituting at least the Required Committed Purchasers, hereby appoints
Successor Agent as Administrative Agent. Successor Agent hereby accepts such
appointment and Transferor and Collection Agent hereby acknowledge and approve
of such appointment. Transferor, Collection Agent, GECC Committed Purchaser and
GECC Funding Agent hereby acknowledge and agree that the provisions of Sections
2.20 (Indemnities by Transferor), 2.22 (Indemnities for Taxes), 2.23 (Other
Costs, Expenses and Related Matters), 6.10 (Collection Agent Indemnification of
Indemnified Parties) and 8.07 (Indemnification) of the Transfer Agreement, in
each case, as they pertain to Existing Agent, shall survive Existing Agent's
resignation hereunder, and shall inure to the benefit of Existing Agent as to
any actions taken or omitted to be taken while Existing Agent was Administrative
Agent under the Transfer Agreement and the other Transaction Documents.
Each of the parties hereto agree to execute or deliver all documents
Successor Agent reasonably believes are necessary or desirable to evidence its
appointment as successor Administrative Agent; provided that the failure to
comply with this sentence by any party hereto (other than Transferor or
Collection Agent) shall not result in breach of this Third Amendment or a
Potential Termination Event or Termination Event under the Transfer Agreement or
any other Transaction Document. Existing Agent hereby authorizes Successor Agent
to execute, deliver and file all documents Successor Agent believes are
necessary or desirable to evidence its appointment as successor Administrative
Agent, including, but not limited to, amending the UCC financing statements
and/or amendments filed with respect to the Transfer Agreement and other
Transaction Documents and taking any other actions as the "Secured Party of
Record" (under and in accordance with Article 9 of the Uniform Commercial Code)
with respect to the Transfer Agreement and other Transaction Documents.
Existing Agent hereby transfers and assigns to Successor Agent, and
Successor Agent hereby accepts and assumes, all of Existing Agent's right, title
and interest in, to and under the Transfer Agreement and the other Transaction
Documents, including, without limitation, with respect to any liens, mortgages
and security interests derived thereunder with respect to the property of
Transferor or any Seller, which liens, mortgages and security interests are, in
all respects, continuing in effect and hereby are affirmed; provided that such
right, title and interest shall be limited to Existing Agent's right, title and
interest as Administrative Agent under such Transfer Agreement and other
Transaction Documents. Such transfer and assignment is without recourse,
representation or warranty of any kind, other than with respect to the
representations and warranties of Existing Agent set forth in Section 1(e) of
this Third Amendment.
Existing Agent hereby agrees that to the extent that any lien, mortgage or
security interest is not effectively assigned to Successor Agent as of the date
hereof, to act, at the cost and expense of Transferor and Collection Agent, as
the collateral agent for Successor Agent with respect to such mortgage, lien or
security interest under the Transfer Agreement and the other Transaction
Documents for the period commencing on the Third Amendment Effective Date and
continuing until thirty (30) days thereafter or such earlier date as Successor
Agent may request (it being understood and agreed that any reference to Existing
Agent on any publicly filed document, to the extent such filing relates to the
mortgages, liens and security interests assigned hereunder and until such filing
is modified to reflect Successor Agent's interests, shall, with respect to such
liens, mortgages and security interests, constitute a reference to Existing
Agent as collateral agent for Successor Agent). The parties hereto agree that
Existing Agent's role as collateral agent shall impose no duties, obligations or
liabilities on Existing Agent.
In connection with the foregoing, Existing Agent hereby represents and
warrants to Successor Agent, GECC Committed Purchaser and GECC Funding Agent
that Existing Agent transfers its right, title and interest as Administrative
Agent under the Transfer Agreement and the other Transaction Documents free and
clear of any lien, mortgage, security interest or other Adverse Claim.
Amendments to Transfer Agreement. As of the Third Amendment Effective Date
(defined below), the Transfer Agreement hereby is amended in the following
respects:
The second paragraph of Section 2.02(a) of the Transfer Agreement hereby is
amended to delete the reference therein to "two (2) Business Days" and to
replace it with a reference to "one (1) Business Day".
Section 2.03(c) of the Transfer Agreement hereby is amended and restated in
its entirety as follows:
With respect to any portion of the Transferred Interest which is owned by
or transferred to a Committed Purchaser (other than GE Capital) pursuant to
this Agreement or an Asset Purchase Agreement prior to the Termination
Date, the initial Tranche Period applicable to such portion of the Net
Investment allocable thereto shall be a period of at least three (3)
Business Days, and such Tranche shall be a BR Tranche. (x) Thereafter (but
prior to the Termination Date or the occurrence and continuation of a
Potential Termination Event), with respect to such portion, and with
respect to any other portion of the Transferred Interest held by any
Committed Purchaser (other than GE Capital), and (y) from and after the
Third Amendment Effective Date with respect to any Transferred Interest
held by GE Capital, in its capacity as Committed Purchaser, the Tranche
applicable thereto shall be, at the Transferor's sole option, either a BR
Tranche or a Eurodollar Tranche. The Transferor shall give the
Administrative Agent and the Funding Agents with respect to the applicable
Committed Purchasers irrevocable notice by telephone of the new Tranche
Period (i) if the applicable Tranche is to be a Eurodollar Tranche, at
least three (3) Business Days prior to the expiration of any then existing
Tranche Period, and (ii) if the applicable Tranche is to be a BR Tranche,
at least one (1) Business Day prior to the expiration of any then existing
Tranche Period. Any Tranche Period maintained by the Committed Purchasers
which is outstanding on the Termination Date shall end on the Termination
Date.
Section 2.07 of the Transfer Agreement hereby is amended to delete the
third sentence thereof in its entirety and to replace it with the following:
The Commitment of each Committed Purchaser shall be reduced
proportionately.
Section 2.08 of the Transfer Agreement hereby is amended and restated in
its entirety as follows:
Section 2.08. Fees. To the extent not otherwise provided for by the
provisions of the Agreement, Transferor shall pay to the Administrative
Agent, for its own account and the account of each CP Conduit Purchaser,
Funding Agent and Committed Purchaser, the Fees specified in the Fee
Letters, as applicable.
Section 2.11 of the Transfer Agreement hereby is amended to delete the
phrase "JPMorgan Chase's offices at 000 X. 00xx Xxxxxx xx Xxx Xxxx, XX," and to
replace it with "GE Capital's offices at 0000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxxx,
XX 00000,".
Section 3.01(w) of the Transfer Agreement hereby is amended to delete each
reference therein to "Restatement Date" and to replace each such reference with
a reference to "Third Amendment Effective Date".
Section 6.05(g) of the Transfer Agreement hereby is deleted in its entirety
and is replaced with the following:
(g) [INTENTIONALLY OMITTED]
Section 8.03 of the Transfer Agreement hereby is amended to delete clause
(y) of such Section in its entirety and to replace it with the following:
(y) in the absence of its own gross negligence or willful misconduct as
finally determined pursuant to a nonappealable order or judgment issued by
a court of competent jurisdiction
Section 8.04 of the Transfer Agreement hereby is amended to add the
following sentence after the final punctuation of such Section:
The Administrative Agent shall not be bound to make any investigation into
the facts or matters stated in any notice or other communication hereunder
and may rely on the accuracy of such facts or matters.
Section 8.07 of the Transfer Agreement hereby is amended to add the
following phrase to the end of the penultimate sentence of such Section:
as finally determined pursuant to a nonappealable order or judgment issued
by a court of competent jurisdiction
Section 8.09 of the Transfer Agreement hereby is amended to delete the
reference therein to "this Article VII" and to replace it with a reference to
"this Article VIII, Section 2.20, Section 2.22 and Section 2.23".
Section 10.02(a) of the Transfer Agreement hereby is amended (A) to delete
clause (F) thereto in its entirety and (B) to delete the reference therein to
"(G)" and to replace it with a reference to "(F)".
Section 10.03 of the Transfer Agreement hereby is amended to delete the
notice information provided for (i) the Administrative Agent and to replace it
with the following:
If to the Administrative Agent:
General Electric Capital Corporation
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx & Xxxxxx, Account Manager
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
E-mail: xxxxxx.xxxxxx@xx.xxx
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 X. Xxxxx Xx.
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
E-mail: xxxxx@xxxxxx.xxx
and
General Electric Capital Corporation
000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Corporate Counsel - Commercial Finance / CLG-East
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
E-mail: xxxxxxx.xxxxx@xx.xxx
and (ii) for the Transferor and to replace it with the following:
CARCORP, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxxxx, Assistant Treasurer - Capital Markets
Xxxxxxx & Xxxxxx Products Co.
000 Xxxxxxxxxx Xxxxxxx
Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with an additional copy to:
Xxxxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xx.
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Section 10.06(d)(i) of the Transfer Agreement hereby is amended to delete
the text thereof up to, but excluding, the proviso therein and to replace it
with the following:
(i) At any time following April 30, 2005 and, if earlier, after the
occurrence and during the continuation of a Termination Event, any
Committed Purchaser may from time to time, upon the prior written consent
of the related CP Conduit Purchaser and the Administrative Agent, and, if
the purchaser is not an Affiliate of the selling Committed Purchaser and no
Termination Event has occurred and is continuing, the prior written consent
of Transferor (which consent shall not be unreasonably withheld), assign to
one or more accredited investors or other Persons ("Assignee(s)") all or
any part of its rights and obligations under this Agreement and the other
Transaction Documents pursuant to a supplement to this Agreement,
substantially in the form of Exhibit K hereto (each, a "Transfer
Supplement");
Sections 10.12, 10.13 and 10.14 of the Transfer Agreement hereby are
amended to delete the text thereof and to replace it with the following:
Section 10.12. [INTENTIONALLY OMITTED]
Section 10.13. [INTENTIONALLY OMITTED]
Section 10.14. [INTENTIONALLY OMITTED]
Section 10.15 of the Transfer Agreement hereby is amended and restated in
its entirety as follows:
Section 10.15. GE Capital Conflict Waiver. GE Capital acts as
Administrative Agent and as Funding Agent for itself as Committed Purchaser
and may provide other services or facilities from time to time (the "GE
Capital Roles"). Without limiting the generality of Section 8.08, each of
the parties hereto hereby acknowledges and consents to any and all GE
Capital Roles, waives any objections it may have to any actual or potential
conflict of interest caused by GE Capital's acting as the Administrative
Agent and acting or maintaining any of the GE Capital Roles, and agrees
that in connection with any GE Capital Role, GE Capital may take, or
refrain from taking, any action which it in its discretion deems
appropriate.
Section 10.19 of the Transfer Agreement hereby is deleted in its entirety.
Schedule A to the Transfer Agreement hereby is amended to delete the
definitions of "CDC Roles", "Eiffel", "Eiffel Termination Event", "First
Amendment Effective Date", "GECC CP Rate", "GECC Tranche", "GECC Tranche
Period", "JPMorgan Chase Roles", "Liberty", "Liberty Termination Event",
"PARCO", "PARCO Termination Event", and "The Bank of Nova Scotia Roles", in
their entirety.
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "Administrative Agent" in its entirety and to replace it with the
following:
"Administrative Agent" shall mean GE Capital, as administrative agent
on behalf of CP Conduit Purchasers, the Funding Agents and Committed
Purchasers, and its permitted successors and assigns in such capacity.
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "Applicable Margin" in its entirety and to replace it with the
following:
"Applicable Margin" shall mean, for any day:
(a) with respect to any BR Tranche, (i) from and including the Third
Amendment Effective Date to but excluding the ninetieth (90) day following
the Third Amendment Effective Date, seventy-five one hundredths percent
(0.75%), (ii) from and including the ninetieth (90) day following the Third
Amendment Effective Date to but excluding the one hundred eightieth (180)
day following the Third Amendment Effective Date, one percent (1.00%), and
(iii) thereafter, one and twenty-five one hundredths percent (1.25%); and
(b) with respect to any Eurodollar Tranche, (i) from and including the
Third Amendment Effective Date to but excluding the ninetieth (90) day
following the Third Amendment Effective Date, one hundred seventy-five one
hundredths percent (1.75%), (ii) from and including the ninetieth (90) day
following the Third Amendment Effective Date to but excluding the one
hundred eightieth (180) day following the Third Amendment Effective Date,
two percent (2.00%), and (iii) thereafter, two and twenty-five one
hundredths percent (2.25%).
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "Base Rate" or "BR" in its entirety and to replace it with the
following:
"Base Rate" or "BR" shall mean, for any day, a floating rate equal to
the higher of (a) the rate publicly quoted from time to time by The Wall
Street Journal as the "base rate on corporate loans at large U.S. money
center commercial banks" (or, if The Wall Street Journal ceases quoting a
base rate of the type described, the highest per annum rate of interest
published by the Federal Reserve Board in Federal Reserve statistical
release H.15 (519) entitled "Selected Interest Rates" as the bank prime
loan rate or its equivalent), and (b) the Federal Funds Rate plus fifty
(50) basis points per annum. Each change in any interest rate provided for
in the Agreement based upon the Base Rate shall take effect at the time
such change in the Base Rate is publicly announced as being effective.
Schedule A to the Transfer Agreement hereby is amended to remove the
reference to "December 20, 2004" in the definition of "Commitment Expiry Date"
and to replace it with a reference to "March 10, 2006".
Schedule A to the Transfer Agreement hereby is amended to amend and restate
the definition of "CP Conduit Funding Limit" as follows:
"CP Conduit Funding Limit" shall mean $250,000,000, as the same may be
reduced from time to time as provided in Section 2.07 of the Receivables
Transfer Agreement.
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "CP Conduit Purchaser's Termination Event" and to replace it with
the following:
"CP Conduit Purchaser's Termination Event" shall mean (a) in the case
of Redwood, a Redwood Termination Event, and (b) in the case of any Conduit
Assignee or other Person who becomes a CP Conduit Purchaser after the Third
Amendment Effective Date, the "CP Conduit Purchaser's Termination Event"
specified in the agreement by which such Person becomes a party to the
Receivables Transfer Agreement.
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "Eurodollar Tranche Period" in its entirety and to replace it with
the following:
"Eurodollar Tranche Period" shall mean (i) the period commencing on
the Third Amendment Effective Date and ending on the last day of the
calendar month in which the Third Amendment Effective Date occurred, and
(ii) thereafter, each successive period commencing on the first day of each
calendar month and ending on the last day of such calendar month; provided
that the initial Eurodollar Tranche Period following the sale by a CP
Conduit Purchaser to its related Committed Purchaser of its Incremental
Transfers pursuant to an Asset Purchase Agreement shall commence on the
third Business Day following such sale and end on the last day of the
calendar month in which such sale occurred.
Schedule A to the Transfer Agreement hereby is amended to delete the
reference in the definition of "Facility Limit" to "98.04%" and to replace it
with a reference to "97.82%".
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "Fee Letters" in its entirety and to replace it with the
following:
"Fee Letters" shall mean (i) that certain letter agreement, dated as
of December 2, 2004, by and among GE Capital and Collection Agent, and (ii)
any other letter agreement from time to time among either Transferor or
Collection Agent, on the one hand, and a CP Conduit Purchaser or Committed
Purchaser, on the other hand, regarding fees payable by Transferor or
Collection Agent, as the case may be, to any CP Conduit Purchaser or
Committed Purchaser, as the case may be.
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "LIBOR Rate" in its entirety and to replace it with the following:
"LIBOR Rate" shall mean, for any Eurodollar Tranche Period, an
interest rate per annum equal to the rate per annum appearing on Page 3750
of the Telerate Service (or on any successor or substitute page of such
Telerate Service, or any successor to or substitute for such Telerate
Service, providing rate quotations comparable to those currently provided
on such page of such Telerate Service, as determined by the Administrative
Agent from time to time for purpose of providing quotations of interest
rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 A.M., London time, two Business Days prior to the
commencement of such Eurodollar Tranche Period, as the rate for dollar
purchases with a maturity comparable to such Eurodollar Tranche Period.
Schedule A to the Transfer Agreement hereby is amended to amend the
definition of "Notional Amount" to delete the reference therein to "$15,000,000"
and to replace it with a reference to "$35,000,000".
Schedule A to the Transfer Agreement hereby is amended to delete the
definition of "Program Fee" in its entirety.
Schedule A to the Transfer Agreement hereby is amended to amend and restate
the definition of "Tranche Rate" as follows:
"Tranche Rate" shall mean the CP Rate, the Base Rate or the Eurodollar
Rate, as applicable, plus, in the case of the Base Rate or the Eurodollar
Rate, the Applicable Margin.
Schedule A to the Transfer Agreement hereby is amended to amend and restate
the definition of "Tranche Period" as follows:
"Tranche Period" shall mean a CP Tranche Period, a BR Tranche Period or a
Eurodollar Tranche Period, as applicable.
Schedule A to the Transfer Agreement hereby is amended to add the following
definitions in the proper alphabetical order:
"Third Amendment Effective Date" shall mean December 10, 2004.
Schedule B to the Transfer Agreement hereby is amended to delete the
contents thereof in their entirety and to replace them with the contents of
Schedule I hereto.
Schedule G to the Transfer Agreement hereby is deleted in its entirety.
Exhibit B to the Transfer Agreement hereby is amended to delete the
contents thereof in their entirety and to replace them with the contents of
Schedule II hereto.
Exhibit D to the Transfer Agreement hereby is amended to revise the
information contained under the heading "Net Investment Information" to reflect
the CP Conduit Funded Amount or Committed Purchaser Funded Amount, as the case
may be, for the CP Conduit Purchasers and Committed Purchasers party to the
Transfer Agreement at the time of delivery of each Settlement Statement.
Representations and Warranties. Each of Transferor and Collection Agent
hereby represents and warrants to Successor Agent, GECC Committed Purchaser and
GECC Funding Agent that, as of the Third Amendment Effective Date and after
giving effect to this Third Amendment:
The execution, delivery and performance by each of Transferor and
Collection Agent of this Third Amendment (i) are within such Person's corporate
power, and (ii) have been duly authorized by all necessary or proper corporate
and shareholder action.
When duly executed and delivered by each of Transferor and Collection
Agent, this Third Amendment shall constitute a legal, valid and binding
obligation of such Person enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws affecting the rights of creditors
generally and general equitable principles (whether considered in a proceeding
at law or in equity).
The execution, delivery and performance by Transferor and Collection Agent
of this Third Amendment will not contravene any provision of applicable law,
rule or regulation or of the articles of incorporation or bylaws of Transferor
or Collection Agent or constitute a default under any agreement or any
judgement, injunction, order, writ, decree or other instrument binding upon
Transferor or Collection Agent or result in the creation or imposition of any
Adverse Claim on the assets of Transferor or Collection Agent (except as
contemplated by Section 2.09 of the Transfer Agreement).
The execution, delivery and performance of by Transferor and Collection
Agent of this Third Amendment does not require any action by or in respect of,
or filing with, any Official Body or official thereof, other than has been
obtained or made and other than as will be made on Form 8-K with the Securities
and Exchange Commission, which Form 8-K will disclose the transactions
contemplated by this Third Amendment.
All of the representations and warranties of Transferor and Collection
Agent contained in this Third Amendment, the Transfer Agreement and the other
Transaction Documents are true and correct in all material re-
spects on and as of the Third Amendment Effective Date, as if then made (other
than representations and warranties which expressly speak as of a different
date, which are true and correct in all material respects as of that date).
All of the representations and warranties of the Sellers contained in the
Receivables Purchase Agreement and the other Transaction Documents are true and
correct in all material respects on and as of the Third Amendment Effective
Date, as if then made (other than representations and warranties which expressly
speak as of a different date, which are true and correct in all material
respects as of that date).
The information set forth in Schedule E, and Exhibits G, and H to the
Transfer Agreement is accurate and complete as of the date hereof.
None of the articles of organization, bylaws or analogous documents of
Transferor, Collection Agent or any Seller has been amended since the last
copies of such documents delivered and certified to Existing Agent.
Both immediately prior to and after giving effect to this Third Amendment,
no Termination Event or Potential Termination Event has occurred or is
continuing.
Covenants. 1) Transferor shall cause, at Transferor's cost and expense, one
set of Uniform Commercial Code, tax, judgment and other lien searches in respect
of Transferor and each Seller in each such Person's state of organization, which
Uniform Commercial Code, tax, judgment and other lien searches shall reveal that
no Adverse Claim has been created on the collateral granted pursuant to Section
10.10 of the Receivables Transfer Agreement.
Not later than thirty (30) days following the Third Amendment Effective
Date, Transferor shall (i) cause to be delivered to Successor Agent a
fully-executed letter agreement among Transferor, Successor Agent and Existing
Agent and acknowledged by The Bank of Nova Scotia, as collection bank,
substantially in the form attached hereto as Exhibit A, with such changes as may
be approved by Successor Agent, and (ii) establish with a financial institution
that is reasonably acceptable to Successor Agent, a collection account into
which collections from the Sellers' Canadian operations will be directed from
the applicable Lockbox Accounts (such collection account, the "Canadian
Account"). Further, not later than thirty (30) days following the Third
Amendment Effective Date, and in conjunction with the actions taken in the
immediately preceding sentence, Transferor shall cause to be delivered to
Successor Agent, with respect to that certain collection account number
323883680 maintained at JPMorgan Chase Bank, N.A., either a fully-executed
amendment to the existing Lockbox Agreement with JPMorgan Chase Bank, N.A. or a
fully-executed three party account control agreement, in each case, which
account control agreement is sufficient to perfect Successor Agent's security
interest therein and, is otherwise in form and substance satisfactory to
Successor Agent.
Third Amendment Effective Date. This Third Amendment shall become effective
as of the date first written above (the "Third Amendment Effective Date") upon
the satisfaction of each of the following conditions, in each case, in form and
substance satisfactory to Successor Agent:
Successor Agent shall have received counterparts hereof executed by
Transferor, Collection Agent, GECC Committed Purchaser and Existing Agent;
Successor Agent shall have received counterparts from each party thereto
with respect to each of the following documents:
that certain Second Amendment to Amended and Restated Receivables
Purchase Agreement, dated as of the date hereof, among the Sellers and
Transferor and acknowledged by GECC Committed Purchaser;
that certain letter agreement regarding fees and syndication, dated as
of December 2, 2004, between GE Capital and Collection Agent;
that certain letter agreement regarding commitments to lend, dated as
of December 2, 2004, between GE Capital and Collection Agent (the
"Commitment Letter");
that certain letter agreement, dated as of the date hereof, among
Transferor, Successor Agent and Existing Agent and acknowledged by JPMorgan
Chase Bank, N.A. (successor by merger to Bank One, NA), as collection bank;
that certain letter agreement, dated as of the date hereof, among
Transferor, Successor Agent and Existing Agent and acknowledged by JPMorgan
Chase Bank, N.A., as collection bank;
that certain Required Currency Hedge Assignment, dated as of the date
hereof, among Transferor and Successor Agent and acknowledged by JPMorgan
Chase Bank, N.A., as currency hedge counterparty;
that certain letter agreement, dated as of the date hereof, among
Transferor, Successor Agent and Existing Agent and acknowledged by JPMorgan
Chase Bank, N.A., as swap counterparty;
that certain Credit Default Swap Assignment, dated as of the date
hereof, among Transferor, Successor Agent and Existing Agent and
acknowledged by JPMorgan Chase Bank, N.A. as swap counterparty;
that certain Transfer Supplement No. 1, dated as of the date hereof,
among GECC Committed Purchaser, JPMorgan Chase Bank, N.A., Delaware Funding
Corporation (successor by assignment to Park Avenue Receivables
Corporation), Existing Agent, Transferor and Collection Agent;
that certain Transfer Supplement No. 2, dated as of the date hereof,
among GECC Committed Purchaser, IXIS Financial Products (formerly known as
CDC Financial Products Inc.), Eiffel Funding, LLC, Existing Agent,
Transferor and Collection Agent; and
that certain Transfer Supplement No. 3, dated as of the date hereof,
among GECC Committed Purchaser, The Bank of Nova Scotia, Liberty Street
Funding Corp., Existing Agent, Transferor and Collection Agent;
Successor Agent shall have received a certificate of a Responsible Officer
of Collection Agent which certificate certifies as to the truth and completeness
of the Transfer Agreement, the Receivables Purchase Agreement, each existing
Lockbox Agreement, each existing Credit Default Swap and assignment thereof,
each existing Required Currency Hedge and assignment thereof and each effective
UCC-1 financing statement filed in connection with the Receivables Purchase
Agreement or the Transfer Agreement, in each case, attached to such certificate;
Successor Agent shall have received evidence satisfactory to it that the
UCC-3 amendments have been filed in the appropriate filing offices to evidence
the assignment to Successor Agent of all effective UCC-1 financing statements
filed in connection with the Receivables Purchase Agreement or the Transfer
Agreement;
All of the representations and warranties of Transferor and Collection
Agent contained in this Third Amendment, the Transfer Agreement and the other
Transaction Documents shall be true and correct in all material respects on and
as of the Third Amendment Effective Date, as if then made (other than
representations and warranties which expressly speak as of a different date,
which shall be true and correct in all material respects as of that date);
All of the representations and warranties of the Sellers contained in the
Receivables Purchase Agreement and the other Transaction Documents shall be true
and correct in all material respects on and as of the Third Amendment Effective
Date, as if then made (other than representations and warranties which expressly
speak as of a different date, which shall be true and correct in all material
respects as of that date);
Both immediately prior to and after giving effect to the Third Amendment,
no Termination Event or Potential Termination Event shall has occurred and be
continuing;
Successor Agent shall have received, for the account of itself and GECC
Committed Purchaser, (i) payment of all Fees due and payable under the Fee
Letters as of the Third Amendment Effective Date and (ii) payment of all
costs and expenses due and payable under Section 2.23 of the Transfer Agreement,
the Fee Letters and the Commitment Letter.
Reference to and Effect on the Related Documents.
Upon the Third Amendment Effective Date, each reference in the Transfer
Agreement to "this Agreement", "hereunder", "hereof" or words of like import,
and each reference in the Transaction Documents to the "Receivables Transfer
Agreement" or the "Transfer Agreement" shall mean and be a reference to the
Transfer Agreement as amended hereby.
Upon the Third Amendment Effective Date, each reference in the Transfer
Agreement to the "Administrative Agent" and each reference in the Transaction
Documents (including the Limited Guaranty) to the "Administrative Agent" or,
solely in Existing Agent's capacity as Administrative Agent, to "JPMorgan Chase"
or "JPMorgan Chase Bank" shall mean and be a reference to Successor Agent, in
its capacity as Administrative Agent.
This Third Amendment shall be limited solely to the matters expressly set
forth herein and shall not (i) constitute an amendment or waiver of any term or
condition of the Transfer Agreement or any other Transaction Document, except as
expressly provided herein, (ii) prejudice any right or rights which Successor
Agent, GECC Committed Purchaser or GECC Funding Agent may now have or may have
in the future under or in connection with the Transfer Agreement or any other
Transaction Document, (iii) require Successor Agent, GECC Committed Purchaser or
GECC Funding Agent to agree to a similar transaction on a future occasion or
(iv) create any rights herein to another Person or other beneficiary or
otherwise.
Except to the extent specifically amended hereby, the respective provisions
of the Transfer Agreement and the other Transaction Documents shall not be
amended, modified, waived, impaired or otherwise affected hereby, and such
documents and Transferor's and Collection Agent's obligations under each of them
are hereby confirmed as being in full force and effect.
Release.
Transferor and Collection Agent acknowledges that Successor Agent, GECC
Committed Purchaser and GECC Funding Agent would not enter into this Third
Amendment without Transferor's and Collection Agent's assurance that neither of
them has any claim against Successor Agent, GECC Committed Purchaser, GECC
Funding Agent or any other Indemnified Party. Each of Transferor and Collection
Agent, for itself and on behalf of its officers and directors, and its
respective predecessors, successors and assigns (collectively, the "Releasors")
releases each of Successor Agent, GECC Committed Purchaser, GECC Funding Agent
and each other Indemnified Party from any known or unknown claims arising out of
or related to the Transaction Documents or the transactions contemplated thereby
which any Releasor now has against any of Successor Agent, GECC Committed
Purchaser, GECC Funding Agent or any other Indemnified Party of any nature,
including any claims that any Releasor, or any Releasor's successors, counsel
and advisors may in the future discover they would have had now if they had
known facts not now known to them, whether founded in contract, in tort or
pursuant to any other theory of liability.
The provisions, waivers and releases set forth in this section are binding
upon each Releasor. The provisions, waivers and releases of this section shall
inure to the benefit of each of Successor Agent, GECC Committed Purchaser, GECC
Funding Agent and each other Indemnified Party.
The provisions of this section shall survive reduction to zero of the Net
Investments, full performance of all of the terms of this Third Amendment, the
Transfer Agreement and the other Transaction Documents and/or any action by
Successor Agent, GECC Committed Purchaser or GECC Funding Agent to exercise any
remedy available under the Transaction Documents, applicable law or otherwise.
Each of Transferor and Collection Agent warrants and represents that such
Person is the sole and lawful owner of all right, title and interest in and to
all of the claims released hereby and such Person has not heretofore
voluntarily, by operation of law or otherwise, assigned or transferred or
purported to assign or transfer to any person any such claim or any portion
thereof. Each of Transferor and Collection Agent shall indemnify and hold
harmless
each of Successor Agent, GECC Committed Purchaser, GECC Funding Agent and the
other Indemnified Party from and against any claim, demand, damage, debt,
liability (including payment of reasonable attorneys' fees and costs actually
incurred whether or not litigation is commenced) based on or arising out of any
such assignment or transfer.
Miscellaneous. This Third Amendment is a Transaction Document. The headings
herein are for convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
Counterparts. This Third Amendment may be executed in any number of
separate original or facsimile counterparts, each of which shall collectively
and separately constitute one agreement.
GOVERNING LAW. THIS THIRD AMENDMENT, AND ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Third Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Third Amendment shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Third Amendment.
[signature page follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
CARCORP, INC., as Transferor
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PRODUCTS CO., individually,
as Guarantor and as Collection Agent
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION,
as GECC Committed Purchaser and
as GECC Funding Agent
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION,
as Successor Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
JPMORGAN CHASE BANK, N.A.,
as Existing Agent
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
