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(a)
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Section 1.1(d) of the Sale
Agreement is hereby amended and as so
amended
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shall be restated in its entirety
to read as follows:
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On each day
before the Termination
Date that any Collections
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are received by the Collection
Agent and no Interim Liquidation is in effect, a Purchaser's Purchase Interest
in such Collections shall automatically be used to make a Reinvestment Purchase
by such Purchaser. The parties hereto agree, however, that to the extent that
the aggregate Commitments of the Blue Ridge Purchaser Group have not otherwise
been reduced to or below $153,000,000 on or prior to February 29, 2000,
that the Blue Ridge Purchaser Agent may at any time thereafter provide notice
to the Agent, each other Purchaser Agent, the Seller and the Collection Agent
that it elects to cause the Reinvestment Purchases of Purchasers in the Blue
Ridge Purchaser Group (but not those of any other Purchasers) to cease until
such time that the aggregate Investment of the Blue Ridge Purchaser Group is
less than or equal to $150,000,000, at which time, subject to Section 7.2,
its Reinvestment Purchases shall automatically recommence.
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(b)
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Section 1.1(e) is hereby amended
and as so amended shall be restated in its
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entirety to read as follows:
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Security Interest. To
secure all of the Seller's obligations under
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the Transaction Documents, the
Seller hereby grants to the Agent (for the benefit of the Purchasers and any
other Person to whom any amount is owed hereunder) a security interest in all
of the Seller's rights (if any) in the Receivables, the Related Security, the
Collections, and the Lock- Box Accounts and all proceeds of the foregoing as
well as all of the Seller's rights under the Purchase Agreement.
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(c)
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Section 1.6 of the Sale
Agreement is hereby amended by adding the following
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immediately at the end of such
Section:
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In addition, upon a reduction of
the Investment of the Blue Ridge
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Purchaser Group to or below
$150,000,000 pursuant to Section 1.1(d), the Commitments of the Related
Bank Purchasers in the Blue Ridge Purchaser Group shall automatically be
ratably reduced to an aggregate amount equal to $153,000,000.
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(d)
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Section 2.3(a) is hereby
amended and as so amended shall be restated in its
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Entirety to read as follows:
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Non-Reinvestment Periods.
On each day during a period that a
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Purchaser in the Blue Ridge
Purchase Group is not making Reinvestment Purchases (as established under
Section 1.1(d)), the Collection Agent (i) shall set aside and hold
solely for the benefit of the applicable Purchasers (or deliver to the
applicable Purchaser Agent, if so instructed pursuant to Section
3.2(a)) each such Purchaser's Purchase Interest in all Collections received
on such day and (ii) shall distribute on the last day of each Tranche
Period to the applicable Purchaser Agent (for the benefit of such Purchaser)
the amounts so set aside up to the amount of such Purchaser's Purchase Amount
and, to the extent not already paid in full, all Discount thereon and all other
amounts then due from the Seller in connection with such Purchase Amount and
Tranche Period. As provided in Section 1.4(c) all Discount and other
amounts payable hereunder other than the Purchase Amount are payable by the
Seller. If any part of the Sold Interest in any Collections is applied to pay
any such amounts pursuant to this Section 2.3(a) and after giving effect
to such application the Sold Interest is greater than 100%, the Seller shall
pay to the Collection Agent the amount so applied to the extent necessary so
that after giving effect to such payment the Sold Interest is no greater than
100%, for distribution as part of the Purchase Interest in Collections.
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(e)
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The opening paragraph of Section 2.3(b) of
the Sale Agreement is hereby
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amended by striking the phrase
"the Sold Interest in" appearing in the fifth line thereof.
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(f)
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Subsections 2.3(b)(i) through (vi)
are amended and as so amended shall be
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restated in their entirety to read
as follows:
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(i)
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first, ratably
to each Purchase Group until all Discount due but
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not already paid to each Purchaser
Group under the Transaction Document, has been paid in full; and
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(ii)
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second, ratably to each
Purchaser Group until all Purchase
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Amounts of each Purchaser Group
under the Transaction Documents has been paid in full; and
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(iii)
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third, ratably
to each Purchaser Group until all amounts owed
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under the Transaction Documents
to such Purchaser Group have been paid in full.
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(iv)
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fourth, to the
Agent until all amounts owed under the transaction
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Documents to such Person have been
paid in full;
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(v)
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fifth, to each
Purchaser Agent until all amounts owed under the
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Transaction Documents to such
Persons have been paid in full;
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(vi)
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sixth, to any
other Person to whom any amounts are owed
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under the Transaction Documents
until all such amounts have been paid in full; and
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(vii)
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seventh, to the
Seller (or as otherwise required by applicable
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law).
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(g)
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The third sentence of Section 3.1(a)
of the Sale Agreement is hereby
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amended by adding the phrase "
and each Purchaser Agent" immediately following the phrase "prior
written notice to the Agent" in each place it occurs in such sentence.
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(h)
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Section 5.1(i) of the Sale
Agreement is hereby amended by adding the phrase
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"and each Purchaser Agent"
immediately following the word "Agent" appearing in the third line of
the second to last sentence of such Section and in the last sentence of such
Section.
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(i)
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Section 5.1 of the Sale Agreement
is hereby amended by adding the following
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new subsection (n) immediately
following subsection (m) thereof:
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(n)
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Restricted Payments by the
Seller. The Seller will not purchase
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or redeem any shares of the
capital stock of the Seller, declare or pay dividends thereon (other than
stock dividends), or make any distribution to stockholders or set aside any
funds for any such purpose; provided, however, the foregoing shall not
prevent the Seller from paying cash dividends on the Settlement Date, after
making any payment required to be made by the Seller on such Settlement Date
in accordance with the last sentence of Section 2.3(a) and Section 2.3(b) if,
after giving effect to such payment, the Seller's net worth (as determined in
accordance with GAAP) would not be less than 3% of the Purchase Limit.
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(j)
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Schedule I to the Sale Agreement is
hereby amended by adding the following
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defined terms in their proper
alphabetical order:
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"Adjusted Dilution
Ratio" means, at any time, the average of
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the Dilution Ratio for each of
the 12 most recently completed calendar months.
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"Aggregate
Reserve" means, at any time at which such amount
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is calculated, the greater of (a)
the sum of the Loss Reserve, Dilution Reserve and Discount Reserve and (b) the
Required Reserve Floor.
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"Dilution Horizon
Ratio" means, as of any date, an amount
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calculated by dividing the
aggregate sales of the Originator for the most recent calendar month by the
aggregate outstanding balance of the Net Receivables Balance as of the last
day of the most recent calendar month.
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"Dilution Volatility
Component" means an amount (expressed
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as a percentage) equal to the
product of (a) the difference between (i) the highest three month rolling
average Dilution Ratio over the past 12 months and (ii) the Adjusted
Dilution Ratio and (b) a fraction, the numerator of which is the highest
three month rolling average Dilution Ratio during the past 12 months and
the denominator of which is the Adjusted Dilution Ratio.
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"Liberty Street"
means Liberty Street Funding Corp., a
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Delaware corporation.
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"Liberty Street Committed
Purchasers" means the Related
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Bank Purchasers for
Liberty Street.
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"Liberty Street Purchaser
Agent" means The Bank of Nova
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Scotia.
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"Liberty Street Purchaser
Group" means Liberty Street and the
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Liberty Street Committed
Purchasers.
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"Required Reserve
Floor" means, at any time, the product of
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(a) 29% and (b) the Net Receivables
Balance at such time.
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(k)
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The defined term
"Concentration Limit" appearing in Schedule I to the Sale
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Agreement is hereby deleted and
replaced with the following:
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"Concentration Limit"
means, with respect to any Obligor, the
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percentage of the Eligible
Receivable Balance set forth in the table below based upon the short-term
unsecured debt rating (or, in the absence of such rating, the equivalent
long-term unsecured senior debt rating) currently assigned to them by S&P
and Xxxxx'x, (and, if such Obligor is rated by both agencies and has a split
rating (except for an A-1+/P-1 rating), the applicable rating will be the
lower of the two), (or, if larger, the Special Limit applicable to such
Obligor):
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S&P RATING
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XXXXX'X RATING
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ALLOWABLE % OF
ELIGIBLE
RECEIVABLES
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A-1+
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P-1
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10%
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A-1
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P-1
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8%
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A-2
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P-2
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6%
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A-3
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P-3
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3%
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Below A-3 or Not Rated by either
S&P or Xxxxx'x
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Below P-3 or Not Rated by either
S&P or Xxxxx'x
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2%
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If an Obligor has neither a
long-term unsecured debt rating nor a
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short-term unsecured debt rating by
either S&P or Xxxxx'x, that Obligor's Concentration Limit will be 2% of the
Eligible Receivables Balance.
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(l)
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The defined term "Default
Ratio" appearing in Schedule I to the Sale
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Agreement is hereby deleted and
replaced with the following:
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"Default Ratio"
means the ratio (expressed as a percentage)
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for any calendar month of (a) the
outstanding balance of all Defaulted Receivables at the end of the most recently
completed calendar month to (b) the outstanding balance of all Receivables at
the end of such calendar month.
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(m)
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The defined term
"Dilution Ratio" appearing in Schedule I to the Sale
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Agreement is amended in its
entirety to read as follows:
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"Dilution Ratio"
means, as of any date, an amount (expressed
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as a percentage) equal to a
fraction, (i) the numerator of which is the aggregate amount of payments
owed by the Seller pursuant to the first sentence of Section 1.5(b) hereof
during the previous calendar month, and (ii) the denominator of which
is the amount of sales generated by the Originator during the previous
calendar month.
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(n)
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The defined term "Dilution
Reserve" appearing in Schedule I to the Sale
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Agreement is hereby deleted and
replaced with the following:
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"Dilution Reserve"
means, at any time, the product of (a) the
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greater of (i) 6%, and (ii) three
times the highest Dilution Ratio (expressed as a decimal) as of the last day of
each of the most recently completed twelve full calendar months for which a
Periodic Report is required to have been delivered and (iii) an amount
(expressed as a percentage) equal to the product of (A) the sum of (i)
2 times the Adjusted Dilution Ratio and (II) the Dilution Volatility
Component and (B) the Dilution Horizon Ratio multiplied by (b) the Net
Receivables Balance at such time.
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(o)
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The defined term "Eligible
Receivable" appearing in Schedule I to the Sale
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Agreement is hereby amended by
adding the following subsection immediately after subsection (x) thereof and
correcting the punctuation appropriately:
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"(xi)
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for all Obligors with Special
Limits and for each of the ten
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Obligors with the largest
outstanding balances of Receivables, not more than 25% of the aggregate
outstanding balance of all Receivables of such Obligor of which are Defaulted
Receivables."
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(p)
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The defined term "
Instructing Group" appearing in Schedule I to the Sale
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is amended in its entirety to read
as follows:
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"Instructing Group"
means all Purchaser Agents representing
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Purchaser Groups.
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(q)
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The defined term "
Purchase Limit" appearing in Schedule I to the Sale
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Agreement is amended in its
entirety to read as follows:
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"Purchase Limit"
means $300,000,000.
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(r)
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The defined term "
Reserve Percentage" appearing in Schedule I to the Sale
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Agreement is amended in its
entirety to read as follows:
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