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Exhibit 10.48
FOURTH AMENDMENT
FOURTH AMENDMENT (the "Fourth Amendment") dated as of November 1, 1996
to Purchase and Administration Agreement dated as of October 1, 1990, as
amended by a First Amendment dated as of February 15, 1994, a Second Amendment
dated as of December 1, 1994 and a Third Amendment dated as of December 1, 1995
(as amended, the "Purchase and Administration Agreement") among Retailer
Funding Corporation (the "Company"), Keyboard Acceptance Corporation (formerly
BPO Finance Corporation) (the "Seller") and Xxxxxxx Piano & Organ Company (the
"Parent") to which General Electric Capital Corporation ("GECC") has joined as
a consenting party. Except as otherwise defined herein, capitalized terms used
herein and defined in the Purchase and Administration Agreement shall be used
herein as so defined.
W I T N E S S E T H :
WHEREAS, the Company, the Seller and the Parent have entered into the
Purchase and Administration Agreement and now desire to amend certain of the
provisions thereof:
NOW, THEREFORE, it is agreed:
1. Section 101 of the Purchase and Administration Agreement is hereby
amended by deleting the definition of "Applicable Program Fee Percentage" set
forth therein and substituting in place therefor the following:
"Applicable Program Fee Percentage" shall mean, with respect to any
Settlement Period, (a) if Consolidated Book Net Worth is $35,000,000 or
less, 1.75%, (b) if Consolidated Book Net Worth is greater than
$35,000,000 and less than or equal to $40,000,000, 1.50%, (c) if
Consolidated Book Net Worth is greater than $40,000,000 and less than or
equal to $50,000,000, 1.25%, or (d) if Consolidated Book Net Worth is
greater than $50,000,000, 1.00%.
2. Section 101 of the Purchase and Administration Agreement is hereby
amended by deleting the definition of "Commitment" set forth therein and
substituting in place therefor the following:
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"Commitment" shall mean the obligation of GECC to make Loans to the
Company with respect to the Seller in a maximum outstanding principal
amount equal to $100,000,000 (or such higher amount not in excess of
$120,000,000 as shall be specified to the Company in writing from time to
time by GECC and the Collateral Agent), as such amount may be terminated
or reduced from time to time pursuant to Section 4.02 of the Liquidity
Agreement.
3. The definition of "Eligible Receivable" in Section 101 of the
Purchase and Administration Agreement is hereby amended by deleting clause (k)
thereof and inserting in place thereof the following:
(k) which bears interest on the principal balance thereof or provides
for the payment of finance charges in respect of the amount financed at a
rate per annum of not less than 9.9% (or such lower rate as shall be
approved from time to time by the Collateral Agent in a particular case or
generally, with the Collateral Agent hereby approving a rate of not less
than 6.9% per annum with respect to Receivables constituting not more than
10% of the Outstanding Principal Receivables) and is in substantially the
form of one of the form contracts set forth as Annex F hereto with such
changes therein as may be necessary or desirable from time to time in
light of local statutes or regulations."
4. Section 101 of the Purchase and Administration Agreement is hereby
further amended by adding the following definitions in the appropriate
alphabetical order:
"Effective Yield" shall mean the ratio (expressed as a percentage)
computed as of the last day of each Settlement Period by dividing (a) the
product of (x) 2 and (y) the sum of (1) the aggregate amount of all
interest and finance charges (and excluding in any event any late fees,
prepayment fees or other similar charges) accruing in respect of all
Eligible Receivables during the period of six consecutive Settlement
Periods then ended and (2) the amount, if any, by which (i) the variable
interest component, if any, receivable by the Company on the notional
principal amount of all SWAPs outstanding at any time during the period of
six consecutive Settlement Periods then ended accrued from the first day
through the last day of such six-month period whether or not such variable
interest component is due and owing during such six-month period exceeds
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(ii) the fixed interest component, if any, payable by the Company on the
notional principal amount of SWAPs outstanding at any time during such
six-month period accrued from the first day through the last day of such
six-month period whether or not such fixed interest component is due and
owing during such six-month period by (b) the average Unpaid Balance of
all Eligible Receivables as of the first day of each of the seven
consecutive Settlement Periods commencing with the first Settlement Period
occurring during such six-month period.
"Effective Yield Adjuster" shall mean, with respect to any Settlement
Period, an amount (but not less than zero) equal to the product of (a) 1.5
and (b) the amount, if any, by which (x) 13.37% exceeds (y) the Effective
Yield as of the last day of the preceding Settlement Period.
5. The Purchase and Administration Agreement is hereby amended by
deleting Annex C thereto and substituting in place thereof Annex C attached
hereto.
6. The Seller hereby confirms its obligation pursuant to Section 712
of the Purchase and Administration Agreement to pay all reasonable costs and
expenses incurred by the Company or GECC in connection with the preparation,
execution and delivery of this Fourth Amendment, including but not limited to
the reasonable fees and expenses of counsel to the Company and GECC and any
rating agency charges in connection with this Fourth Amendment.
7. This Fourth Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Purchase and Administration Agreement.
8. This Fourth Amendment shall become effective (the "Amendment
Effective Date") on the date on which the Company, the Seller, the Parent and
GECC shall have each executed and delivered to the other a counterpart of this
Fourth Amendment.
9. From and after the Amendment Effective Date, all references to the
Purchase and Administration Agreement in the Purchase and Administration
Agreement, each of the other Company Documents and each of the Seller Documents
shall be deemed to be references to the Purchase and Administration Agreement
as amended hereby.
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10. This Fourth Amendment may be executed on separate counterparts by
the parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
11. This Fourth Amendment and the rights and obligations hereunder
shall be construed in accordance with and governed by the laws of the State of
New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fourth Amendment to be duly executed and delivered as of
the date first above written.
RETAILER FUNDING CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
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Title:
KEYBOARD ACCEPTANCE CORPORATION
(formerly BPO Finance Corporation)
By /s/ X. X. Xxxxxxxxx
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Title: Vice President
XXXXXXX PIANO & ORGAN COMPANY
By /s/ Xxxx Xxxx
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Title: Vice President
Consented and agreed to:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Collateral Agent
By /s/ Xxxxxx Xxxxx
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Title: Attorney-in-Fact
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ANNEX C
PURCHASE DISCOUNT ADJUSTMENT CRITERIA
Each of (1) the Purchase Discount, (2) the Cash Percentage and (3) the
ratio specified in clause (vii) of the definition of "Wind-Down Date", in each
case as specified in the Purchase and Administration Agreement dated as of
October 1, 1990 among Retailer Funding Corporation (the "Company"), BPO Finance
Corporation (the "Seller") and Xxxxxxx Piano & Organ Company, as amended (the
"Agreement", to which Agreement reference is hereby made for the meanings of
all capitalized terms used herein and not otherwise defined herein), is subject
to modification from time to time as follows:
1. The amount of over-collateralization shall be determined on the
basis of the loss experience and the Effective Yield of the Seller's
portfolio and shall be maintained at the sum of (1) the higher of (i) 10%
and (ii) three times the Seller's "Loss Experience" plus (2) the Effective
Yield Adjuster. "Loss Experience" with respect to the Seller means the
higher of (x) the 12 month rolling gross average loss experience for the
Seller's portfolio (historically or on a going forward basis) and (y) four
times the loss experience of the Seller's portfolio during the three
consecutive month period with the highest gross loss experience during the
most recent three year period.
2. If the Loss Experience of the Seller's portfolio and/or the
Effective Yield Adjuster increases, the amount of over-collateralization
will be adjusted upward by means of (i) an increase in the Purchase
Discount used in calculating the purchase price of Additional Receivables
for such number of Settlement Periods following the occurrence of such
increase in Loss Experience and/or the Effective Yield Adjuster as is
necessary to cause the aggregate over-collateralization for the portfolio
as a whole to be equal to the over-collateralization percentage specified
in paragraph 1 above, (ii) an adjustment in the Purchase Discount as it is
used for all other purposes to an amount equal to the sum of (1) the
higher of 10% and three times the Seller's Loss Experience plus (2) the
Effective Yield Adjuster and (iii) corresponding changes
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in the Cash Percentage and the ratio set forth in clause (vii) of the
definition of "Wind-Down Date".
3. If the Loss Experience of the Seller's portfolio and/or the
Effective Yield Adjuster decreases, the amount of over-collateralization
will be adjusted downward (but not lower than the higher of 10% and three
times the Seller's Loss Experience) by means of (i) a decrease in the
Purchase Discount used in calculating the purchase price of Additional
Receivables for such number of Settlement Periods following the
occurrence of such decrease as is necessary to cause the aggregate
over-collateralization for the portfolio as a whole to be equal to the
over-collateralization percentage specified in paragraph 1 above, (ii) an
adjustment in the Purchase Discount as it is used for all other purposes
to an amount equal to the sum of (1) the higher of 10% and three times the
Seller's Loss Experience plus (2) the Effective Yield Adjuster and (iii)
corresponding changes in the Cash Percentage and the ratio set forth in
clause (vii) of the definition of "Wind-Down Date".
