AMENDMENT NO. 7 TO RECEIVABLES PURCHASE AGREEMENT
EXECUTION
COPY
AMENDMENT
NO. 7 TO RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 7 TO RECEIVABLES
PURCHASE AGREEMENT (this
“Amendment”),
dated as of September 9, 2008 is among XXXX FUNDING II, LLC, a Delaware limited
liability company (the “Seller”), XXXX
COMPANY, a Wisconsin corporation, as the Servicer (the “Servicer”), JPMORGAN
CHASE BANK, N.A., as the sole financial institution (the “Financial
Institution”), PARK AVENUE RECEIVABLES COMPANY, LLC (together with the
Financial Institution, the “Purchasers”) and
JPMORGAN CHASE BANK, N.A., as agent (the “Agent”) for the
Purchasers.
W I T N E
S S E T H:
WHEREAS,
the Seller, the Servicer, the Purchasers and the Agent are parties to that
certain Receivables Purchase Agreement, dated as of March 15, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the “Agreement”); and
WHEREAS,
the parties hereto have agreed to amend the Agreement on the terms and
conditions set forth below;
NOW
THEREFORE, in consideration of the premises herein contained, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement.
2. Amendments to the
Agreement. Subject to the satisfaction of the conditions precedent set
forth in Section
5 below, the Agreement is hereby amended as follows:
(a) Section
5.1 of the Agreement is hereby amended to add the following clause (z)
immediately following clause (y) thereof:
(z) Remittances of
Collections. Each remittance of Collections by the Seller to any
Purchaser or the Agent (each a “Transferee”) under
this Agreement will have been (i) in payment of a debt incurred by the Seller in
the ordinary course of business or financial affairs of the Seller and such
Transferee and (ii) made in the ordinary course of business or financial affairs
of the Seller and such Transferee.
(b) Section
9.1(h) of the Agreement is hereby amended and restated in its entirety as
follows:
(h) As
at the end of any month,
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(i) the
average Pool Delinquency Ratio, with respect to the three months then most
recently ended, shall exceed 2.50%,
(ii) the
average Serviced Delinquency Ratio, with respect to the three months then most
recently ended, shall exceed 3.00%,
(iii) the
average Loss Ratio, in respect of the Pool Receivables for the three months then
most recently ended, shall exceed (x) 8% if measured for a period ending before
December 31, 2008, or (y) 9.5% if measured for a period ending on or after
December 31, 2008,
(iv) the
average Loss Ratio, in respect of all Receivables for the three months then most
recently ended, shall exceed (x) 8% if measured for a period ending before
December 31, 2008, or (y) 9.5% if measured for a period ending on or after
December 31, 2008, or
(v) the
Excess Spread as of such month end shall be less than zero.
(b) The
following new Section 10.4 is hereby added immediately following Section 10.3 of
the Agreement:
Section
10.4 Accounting Based
Consolidation Event. (a) If an Accounting Based Consolidation Event shall
at any time occur then, upon demand by the Agent, Seller shall pay to the Agent,
for the benefit of the relevant Affected Entity, such amounts as such Affected
Entity reasonably determines will compensate or reimburse such Affected Entity
for any resulting (i) fee, expense or increased cost charged to, incurred or
otherwise suffered by such Affected Entity, (ii) reduction in the rate of return
on such Affected Entity's capital or reduction in the amount of any sum received
or receivable by such Affected Entity or (iii) internal capital charge or other
imputed cost determined by such Affected Entity to be allocable to Seller or the
transactions contemplated in this Agreement in connection therewith. Amounts
under this Section
10.4 may be demanded at any time without regard to the timing of issuance
of any financial statement by Company or by any Affected Entity.
(b) For
purposes of this Section 10.4, the
following terms shall have the following meanings:
“Accounting Based
Consolidation Event" means the consolidation, for financial and/or
regulatory accounting purposes, of all or any portion of the assets and
liabilities of the Company that are subject to this Agreement or any other
Transaction Document with all or any portion of the assets and liabilities of an
Affected Entity. An Accounting Based Consolidation Event shall be deemed to
occur on the date any Affected Entity shall acknowledge in writing that any such
consolidation of the assets and liabilities of the Company shall
occur.
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“Affected Entity”
means (i) any Financial Institution, (ii) any insurance company, bank or other
funding entity providing liquidity, credit enhancement or back-up purchase
support or facilities to Company, (iii) any agent, administrator or manager of
Company, or (iv) any bank holding company in respect of any of the
foregoing.
(c) The
following new Section 12.4 is hereby added immediately following Section 12.3 of
the Agreement:
Section
12.4 Federal
Reserve Notwithstanding any other provision of this Agreement
to the contrary, any Financial Institution may at any time pledge or grant a
security interest in all or any portion of its rights (including, without
limitation, any Purchaser Interest and any rights to payment of Capital and
Yield) under this Agreement to secure obligations of such Financial Institution
to a Federal Reserve Bank, without notice to or consent of the Seller or the
Agent; provided that no such pledge or grant of a security interest shall
release a Financial Institution from any of its obligations hereunder, or
substitute any such pledgee or grantee for such Financial Institution as a party
hereto.
(d) The
definition of “Enhancement Amount”
set forth in Exhibit I to the Agreement is hereby amended and restated in its
entirety as follows:
“Enhancement Amount”
means, as of any date of determination, the greater of (i) $4,500,000 and (ii)
the product of the Net Receivables Balance on such date and the greater of (A)
(x) to but excluding September 30, 2008, 0.15 and (y) from and after September
30, 2008, 0.25, and (B) the product of (I) (w) to but excluding October 31,
2008, 3.00, (x) from and after October 31, 2008 to but excluding November 30,
2008, 3.75, (y) from and after November 30, 2008 to but excluding December 31,
2008, 4.00 and (z) from and after December 31, 2008, 5.00 and (II) the average
Loss Ratio in respect of the Pool Receivables for the three month period
preceding such date of determination.
(e) The
definition of “Excess
Concentration Amount” set forth in Exhibit I to the Agreement is hereby
amended as follows:
(i) The
definition of “Attachment Excess
Amount” set forth therein is hereby amended to delete the reference to
“5%” and to substitute “1%” therefor.
(ii) The
definition of “Extended Warranty Excess
Amount” set forth therein is hereby amended to delete the reference to
“10%” and to substitute “5%” therefor.
(iii) The
definition of “Rental
Fleet Excess Amount” set forth therein is hereby amended to delete the
reference to “35%” and to substitute “32.5%” therefor.
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(f) The
definition of “Liquidity Termination
Date” set forth in Exhibit I to the Agreement is hereby amended to delete
the date “September 9, 2008” set forth therein and to substitute such date with
the date “September 8, 2009”.
(g) The
definition of “Obligor
Concentration Amount” set forth in Exhibit I to the Agreement is hereby
amended to delete the reference to “5%” from the definition of “”H&E Special
Concentration Percentage” therein and to substitute “3.5%”
therefor.
(h) Schedule
A to the Agreement is hereby deleted in its entirety and replaced with Schedule
A attached hereto.
3. Representations and
Warranties of the Seller. In order to induce the parties hereto to enter
into this Amendment, the Seller represents and warrants that:
(a) The
representations and warranties of Seller set forth in Section 5.1 of the
Agreement, as hereby amended, are true, correct and complete on the date hereof
as if made on and as of the date hereof and there exists no Amortization Event
or Potential Amortization Event on the date hereof, provided that in the case of
any representation or warranty in Section 5.1 of the Agreement that expressly
relates to facts in existence on an earlier date, the reaffirmation thereof
under this Section
3(a) shall be made as of such earlier date.
(b) The
execution and delivery by the Seller of this Amendment has been duly authorized
by proper corporate proceedings of the Seller and this Amendment, and the
Agreement, as amended by this Amendment, constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability affecting the enforcement of creditors’ rights
generally.
4. Representations and
Warranties of the Servicer. In order to induce the parties hereto to
enter into this Amendment, the Servicer represents and warrants
that:
(a) The
representations and warranties of the Servicer set forth in Section 5.2 of the
Agreement, as hereby amended, are true, correct and complete on the date hereof
as if made on and as of the date hereof and there exists no Amortization Event
or Potential Amortization Event on the date hereof, provided that in the case of
any representation or warranty in Section 5.2 of the Agreement that expressly
relates to facts in existence on an earlier date, the reaffirmation thereof
under this Section
4(a) shall be made as of such earlier date.
(b) The
execution and delivery by the Servicer of this Amendment has been duly
authorized by proper corporate proceedings of the Servicer and this Amendment,
and the Agreement, as amended by this Amendment, constitutes the legal, valid
and binding obligation of the Servicer, enforceable against the Servicer in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws of general applicability affecting the enforcement of creditors’ rights
generally.
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5. Conditions Precedent.
The amendments to the Agreement provided for hereunder shall become effective as
of the date above first written upon (A) the Agent’s receipt of counterparts of
(i) this Amendment executed by the Seller, the Servicer and each Purchaser and
(ii) the Third Amended and Restated Fee Letter dated the date hereof executed by
the Seller, the Agent, Park Avenue Receivables Company, LLC and X.X. Xxxxxx
Securities Inc. and (B) X.X. Xxxxxx Securities Inc.’s receipt of all fees
payable on the date hereof pursuant to the fee letter described in the foregoing
clause (A)(ii).
6. Ratification. The
Agreement, as amended hereby, is hereby ratified, approved and confirmed in all
respects, it being understood, however, that nothing in this Amendment shall be
deemed to be a consent to any Change of Control, including, but not limited to,
a Change of Control in connection with the acquisition of Xxxx by Manitou BF SA
or any affiliate thereof.
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Reference to
Agreement. From and after the effective date hereof, each reference in
the Agreement to “this Agreement”, “hereof”, or “hereunder” or words of like
import, and all references to the Agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of every kind and
nature shall be deemed to mean the Agreement as amended by this
Amendment.
8. Costs and Expenses.
The Seller agrees to pay all reasonable costs, fees and out-of-pocket expenses
(including attorneys’ fees and time charges of attorneys representing the Agent,
which attorneys may be employees of the Agent) incurred by the Agent in
connection with the preparation, execution and enforcement of this
Amendment.
9
CHOICE OF LAW.
THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10. Execution of
Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed and delivered as of the date
first written above.
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XXXX
FUNDING II, LLC, as Seller
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By:
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/s/
Xxxxx X. Xxxxxx
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Name: Xxxxx
X. Xxxxxx
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Title: Treasurer
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XXXX
COMPANY, as Servicer
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By:
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/s/
Xxxxx X. Xxxxxx
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:
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Name: Xxxxx
X. Xxxxxx
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Title Vice
President and Treasurer
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PARK
AVENUE RECEIVABLES COMPANY, LLC
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By:
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JPMorgan
Chase Bank, N.A., its attorney-in-fact
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By:
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/s/
Xxxxxx Xxxxx
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:
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Name: Xxxxxx
Xxxxx
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Title: Vice
President
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XX
XXXXXX XXXXX BANK, N.A., as the sole Financial Institution and as
Agent
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
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Title: Vice
President
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Signature
Page to
Amendment
No. 7 to Receivables Purchase Agreement
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Schedule
A
Commitments
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Financial
Institution
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Commitment
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JPMorgan
Chase Bank, N.A.
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(x)
To but excluding March 16, 2009,
$165,000,000
and (y) from and after March 16, 2009, $150,000,000
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