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EXHIBIT 10.3
AMENDMENT NO. 1
TO POOLING AND SERVICING AGREEMENT
AND
RECEIVABLES PURCHASE AGREEMENT
dated as of November 21, 1997
among
AVONDALE RECEIVABLES COMPANY,
AVONDALE XXXXX, INC.,
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
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This AMENDMENT No. 1 dated as of November 21, 1997 (this "Amendment")
is made among AVONDALE RECEIVABLES COMPANY, a Delaware corporation, as
transferor ("ARC"), AVONDALE XXXXX, INC., a Delaware corporation, as the Seller
and initial Servicer ("Avondale"), and MANUFACTURERS AND TRADERS TRUST COMPANY,
a New York banking corporation, as Trustee (in that capacity, together with any
successor in that capacity, the "Trustee").
BACKGROUND
1. Avondale, ARC and the Trustee (together, the "Original Parties")
have entered into the Pooling and Servicing Agreement, dated as of April 29,
1996 (the "Pooling Agreement"); and Avondale and ARC have entered into the
Receivables Purchase Agreement, dated as of the same date and amended prior to
the date hereof (as so amended, the "Purchase Agreement"), pursuant to which
Avondale agreed to sell and contribute, and ARC agreed to purchase and receive,
certain Receivables.
2. Avondale and ARC wish to amend the Pooling Agreement and the
Purchase Agreement as provided herein, and the Trustee is willing to consent (by
its execution hereof) to such amendments subject to the conditions specified
herein.
NOW, THEREFORE, for good and valuable consideration (the receipt of
which is acknowledged) the parties agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.01 Definitions. Capitalized terms used but not otherwise
defined herein have the meanings set forth in Appendix A to the Pooling
Agreement.
SECTION 1.02 New Definitions. The following new defined terms are added
to Appendix A to the Pooling Agreement and the Purchase Agreement, each in the
proper alphabetical spot:
"Seller Security Document" means each security document, in form and
substance acceptable to the Buyer, delivered from time to time pursuant to any
provision of the Purchase Agreement, including Section 1.6, as each such
document may be amended, supplemented or otherwise modified from time to time.
"Transferor Assignment" means an assignment, in form and substance
acceptable to the Trustee, evidencing the transfer of the Transferred Assets by
the Transferor to the Trustee thereunder, as it may be amended, supplemented or
otherwise modified from time to time.
"Transferor Security Document" means each security document, in form
and substance acceptable to the Trustee, delivered from time to time pursuant to
any provision of the Pooling Agreement, including Section 2.1(e), as each such
document may be amended, supplemented or otherwise modified from time to time.
SECTION 1.03 Changes to Definitions. (a) The definitions of "Domestic
Person", "Receivable" "Seller Assignment Certificate", "Seller Transaction
Documents" and "Transaction Documents", in Appendix A to the Pooling Agreement
and the Purchase Agreement, are amended and restated to read as follows:
"Domestic Person" means, with respect to a Receivable, any Person that
has a place of business located in the United States of America, Puerto Rico, or
the Canadian provinces of Alberta, British Columbia, Manitoba, Ontario and
Quebec; provided that such place of business is the billing location for such
Receivables.
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"Receivable" means any right of any Seller to payment, whether
constituting an account, chattel paper, instrument, general intangible or
otherwise, arising from the sale of goods or services (including rights under
Xxxx and Hold arrangements) by such Seller or Graniteville Company (and
including the right to payment of any interest or finance charges and other
obligations with respect thereto).
"Seller Assignment Certificates" means assignments by a Seller,
substantially in the form of Exhibit B-1 and B-2 to the Purchase Agreement,
evidencing Transferor's acquisition of the Purchased Assets generated by the
Seller, as they may be amended, supplemented or otherwise modified from time to
time.
"Seller Transaction Documents" means the Purchase Agreement, the Seller
Assignment Certificates, the Seller Security Documents and the Account
Agreements.
"Transaction Documents" means each Seller Transaction Document, the
Pooling Agreement, the Seller Guaranty, each Supplement, each PI Agreement, each
agreement to purchase Investor Certificates, each Intercreditor Agreement, the
Transferor Security Documents, the Transferor Assignment and each other
agreement designated as a Transaction Document in any Supplement or PI
Agreement, as any of the same from time to time may be amended, supplemented,
amended and restated or otherwise modified in accordance with the terms thereof.
(b) The definition of "Excluded Receivable" shall be deleted in its
entirety.
SECTION 1.04 Changes to Purchase Agreement. (a) The second paragraph of
Section 1.6 of the Purchase Agreement is amended in its entirety to read as
follows:
It is, further, not the intention of Buyer or any Seller that
the conveyance of the Specified Assets by a Seller be deemed a grant of
a security interest in the Specified Assets by such Seller to Buyer to
secure a debt or other obligation of such Seller. However, in the event
that, notwithstanding the intent of the parties, any Specified Assets
are property of any Seller's estate, then (i) this Agreement also shall
be deemed to be and hereby is a security agreement under applicable
law, and (ii) the conveyance by such Seller provided for in this
Agreement shall be deemed to be a grant by such Seller to Buyer of, and
such Seller hereby grants to Buyer, a security interest in and to all
of such Seller's right, title and interest in, to and under the
Specified Assets to secure (1) the rights of Buyer hereunder and (2) a
loan by Buyer to such Seller in the amount of the related Purchase
Price of the Purchased Assets sold by it or the Unpaid Balance of any
Contributed Receivables and the Related Contributed Assets, as the case
may be. Each Seller and Buyer shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if
this Agreement were found to create a security interest in the
Specified Assets, such security interest would be a perfected security
interest of first priority (subject to Permitted Adverse Claims) in
favor of Buyer under applicable law and will be maintained as such
throughout the term of this Agreement.
(b) Clause (e) of Section 6.3 of the Purchase Agreement is amended
in its entirety to read as follows:
(e) Change in Name. Such Seller will not (i) change its
corporate name or (ii) change the name under or by which it does
business in any manner that would or may make any financing statement
or any instrument similar in effect filed by such Seller in accordance
herewith seriously misleading within the meaning of Section 9-402(7) of
an applicable enactment of the UCC or otherwise ineffective under the
laws of the applicable jurisdiction, in each case unless such Seller
shall have given Buyer, the Servicer, the Trustee and the Rating
Agencies 30 days' prior written notice thereof and unless, prior to any
change in name, such Seller shall have taken and completed all action
required by Section 7.3.
(c) The final paragraph of Section 7.3 of the Purchase Agreement
is amended in its entirety to read as follows:
Each Seller hereby authorizes Buyer or its designee to file
one or more financing or continuation statements, and amendments
thereto and assignments thereof and such other instruments or notices,
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relative to all or any of the Receivables and Related Assets of such
Seller, in each case whether now existing or hereafter generated by
such Seller. Except for material performance obligations of such Seller
to any Obligor hereunder or under any of the Contracts, if (i) such
Seller fails to perform any of its agreements or obligations under this
Agreement and does not remedy the failure within the applicable cure
period, if any, and (ii) Buyer in good faith reasonably believes that
the performance of such agreements and obligations is necessary or
appropriate to protect its interests under this Agreement, then Buyer
or its designee may (but shall not be required to) perform, or cause
performance of, such agreement or obligation and the reasonable
expenses of Buyer or its designee or assignee incurred in connection
with such performance shall be payable by such Seller as provided in
Section 9.1.
(d) Each reference in the Purchase Agreement to "Exhibit B" shall
be amended to refer to "Exhibit B-1 and Exhibit B-2".
(e) The Purchase Agreement shall be amended by adding Exhibit B-2
attached hereto as Exhibit B-2 thereto.
SECTION 1.05 Changes to Pooling Agreement.
(a) Clause (b) of Section 2.1 of the Pooling Agreement is amended
in its entirety to read as follows:
(b) In connection with the transfer described in subsection
(a), (i) Transferor will from time to time at its own expense, promptly
execute and deliver such assignments, instruments and documents
(including the Transferor Assignment) that Trustee may reasonably
request in order to perfect, protect and more fully evidence such
transfer and (ii) Transferor and Servicer shall record and file or
cause to be recorded and filed, as an expense of Servicer paid out of
the Servicing Fee, financing statements, assignments and such other
instruments, notices and documents with respect to the Transferred
Assets meeting the requirements of applicable law in such manner and in
such jurisdictions as are necessary to perfect the transfer and
assignment of the Transferred Assets to the Trust. In connection with
the transfer described in subsection (a), Transferor and Servicer
further agree to deliver to Trustee each Transferred Asset (including
any original documents or instruments included in the Transferred
Assets as are necessary to effect such transfer) in which the transfer
of an interest is perfected under the UCC or otherwise by possession.
Transferor or Servicer shall deliver each such Transferred Asset to
Trustee, as an expense of Servicer paid out of the Servicing Fee,
immediately upon the transfer of any such Transferred Asset to Trustee
pursuant to subsection (a).
(b) Clause (g) of Section 7.1 of the Pooling Agreement is amended
in its entirety to read as follows:
(g) Approvals. All authorizations, consents, orders and
approvals of, or other action by, any Governmental Authority or other
Person that are required to be obtained by Transferor, and all notices
to and filings with any Governmental Authority or other Person, that
are required to be made by it, in the case of each of the foregoing in
connection with the transfer of Receivables and Related Transferred
Assets to the Trust or the execution, delivery and performance by it of
this Agreement and any other Transaction Documents to which it is a
party and the consummation of the transactions contemplated by this
Agreement, have been obtained or made and are in full force and effect
(other than the filings referred to in Section 2.3(a)(i)(A), all of
which, at the time required in Section 2.3(a)(i)(A), will be duly
made), except where the failure to obtain or make any such
authorization, consent, order, approval, notice or filing, individually
or in the aggregate for all such failures, would not have a substantial
likelihood of having a Material Adverse Effect.
(c) Clause (f) of Section 8.1 of the Pooling Agreement is amended
in its entirety to read as follows:
(f) Approvals. All authorizations, consents, orders and
approvals of, or other action by, any Governmental Authority or other
Person that are required to be obtained by Servicer, and all notices to
and filings with any Governmental Authority or other Person that are
required to be made by it, in the
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case of each of the foregoing in connection with the execution,
delivery and performance by it of this Agreement and any other
Transaction Documents to which it is a party and the consummation of
the transactions contemplated by this Agreement, have been obtained or
made and are in full force and effect, except where the failure to
obtain or make such authorization, consent, order, approval, notice or
filing, individually or in the aggregate for all such failures, is not
likely to have a Material Adverse Effect.
SECTION 1.06 Changes to Both Purchase Agreement and Pooling Agreement.
The Purchase Agreement and Pooling Agreement shall each be amended as follows:
(a) Each reference to "perfected" shall be amended to refer to
"perfected and protected".
(b) Each reference to "financing statement" shall be amended to
refer to "financing statement or any instrument similar in effect".
(c) Each occurrence of the phrase "within the meaning of the UCC"
shall be amended to read "under applicable law".
(d) Each reference to "continuation statements" shall be amended
to refer to "continuation statements or any instrument similar in effect".
(e) Each reference to "state law" shall be amended to refer to
"state or foreign law"; provided that such amendment shall not be made to
Exhibit A of the Purchase Agreement.
(f) Each reference to "perfection" with respect to the perfection
or protection of a security interest shall be amended to refer to "perfection or
protection".
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ARTICLE II
CONDITIONS, REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conditions Precedent. This Amendment shall be effective
from and after the later of (a) November 21, 1997 or (b) the date upon which all
of the conditions precedent specified below have been satisfied (the "Effective
Date"). The conditions precedent are:
(i) The Trustee shall have received from each of Avondale and
ARC a certificate, dated as of the date hereof, of an Authorized
Officer as to:
(A) resolutions of its board of directors then in
full force and effect authorizing the execution, delivery and
performance of this Amendment,
(B) the incumbency and signature of those of its
officers authorized to act with respect to this Amendment,
upon which certificate the Trustee may conclusively rely.
(ii) The Trustee shall have received an opinion of counsel to
Avondale and ARC that the modifications to the Pooling Agreement and
the Purchase Agreement made pursuant to this Amendment are legal, valid
and binding upon each of Avondale and ARC and that such amendments are
permitted under the terms of the Pooling Agreement and the Purchase
Agreement.
(iii) The representations and warranties of Avondale and ARC
as set forth in the Transaction Documents shall continue to be true and
correct, and the Trustee shall have received the certificate of an
Authorized Officer of each of Avondale and ARC to the effect that the
representations and warranties continue to be true and correct.
(iv) The Trustee shall have received an original counterpart
of the Seller Assignment Certificate attached hereto as Exhibit B-2.
SECTION 2.02 Representations and Warranties. Each of Avondale and ARC
represents and warrants to the Trustee that:
(a) The execution and delivery by it of this Amendment, and the
performance of its obligations under the Pooling Agreement and the Purchase
Agreement as modified by this Amendment, are within its corporate powers, have
been duly authorized by all necessary corporate action, have received all
necessary governmental approvals other than Assignment of Claims Act filings (if
any shall be required), and other consents or approvals and do not and will not
contravene or conflict with, or create any Adverse Claim under, (i) any
provision of law, (ii) its constituent documents, (iii) any court or
administrative decree applicable to it or (iv) any contractual restriction
binding upon it or its property which conflict or adverse claim would have a
substantial likelihood of having Material Adverse Affect.
(b) This Amendment has been duly executed and delivered by it,
and the Pooling Agreement and the Purchase Agreement, as amended, are
its legal, valid and binding obligations, enforceable against it in
accordance with its terms except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
(c) The warranties made by it in the Pooling Agreement and the
Purchase Agreement are true and correct as of the date hereof as though
made on that date, except to the extent that the warranties
specifically relate to an earlier date.
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(d) After giving effect to this Amendment, no Early Event or
Unmatured Early Amortization Event shall have occurred and be
continuing.
SECTION 2.03 Representations and Warranties of Trustee2.03
Representations and Warranties of Trustee. The Trustee represents and warrants
that:
(a) it is a banking corporation organized, existing and in
good standing under the laws of the State of New York,
(b) it has full power, authority and right to execute, deliver
and perform this Amendment, and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Amendment, and
(c) this Amendment has been duly executed and delivered by the
Trustee, and is a legal, valid and binding obligation of the Trustee,
enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Miscellaneous. (a) THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
(b) This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, and all of which together shall
constitute one and the same agreement.
(c) Any reference to the Pooling Agreement or the Purchase Agreement
contained in any notice, request, certificate or other document executed
concurrently with or after the Effective Date shall be deemed to be a reference
to the Pooling Agreement or the Purchase Agreement as amended hereby. Except as
expressly modified hereby, the Transaction Documents hereby are ratified and
confirmed by the parties hereto. The amended Pooling Agreement, the amended
Purchase Agreement and the other Transaction Documents remain in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Amendment as of the day and year first above
written.
AVONDALE RECEIVABLES COMPANY,
As Transferor
By: /s/ J. Xxxxxxx Xxxxxxxx
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Title: Assistant Secretary
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Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telephone: 707/000-0000
Facsimile: 707/267-2543
AVONDALE XXXXX, INC., as initial Servicer
By: /s/ J. Xxxxxxx Xxxxxxxx
--------------------------------------------
Title: Vice President, Treasurer and Assistant
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Secretary
-------------------------------------------
Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 707/000-0000
Facsimile: 707/267-2543
The Trustee joins in this Amendment for purposes of
Evidencing its consent thereto.
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
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Title Assistant Vice President
-------------------------------------------
Address: 0 X&X Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx
Corporate Trust Department
Telephone: 716/000-0000
Facsimile: 716/842-4474
