EXHIBIT 10.4
AMENDMENT AGREEMENT
NO. 3
AMENDMENT AGREEMENT NO. 3, dated as of June 21, 2002 (this
"Amendment"), to the Receivables Purchase Agreement, dated as of April 18, 2002
(as amended, restated and/or otherwise modified from time to time, the "RPA"),
among HomePride Finance Corp. ("HomePride") and GSS HomePride Corp. (the
"Seller"), CIT Group/Sales Financing, Inc. (the "Sub-Servicer"), Greenwich
Funding Corp. (the "Investor"), the financial institutions named therein as
Banks (the "Banks") and Credit Suisse First Boston, New York Branch (the
"Agent"). Capitalized terms not otherwise defined herein shall have the meanings
attributed to them in the RPA.
WHEREAS, the parties hereto desire to amend the RPA on the
terms and subject to the provisions hereof;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. Amendments to RPA.
1.1 The definition of "Eligible Receivable" in Section 1.01 of
the RPA is hereby amended by deleting the period at the end thereof and
adding at the end thereof the following:
and
(xxx) until such time as the Agent has received a "no
objection" letter, in form and substance satisfactory to the
Agent, from the appropriate regulatory body in the State of
Louisiana which explicitly states that both the Conduit and
CSFB are exempt from any requirement in such State to obtain
any licenses, permits and/or approvals or to submit any
notifications or registrations in connection with the
transactions contemplated by the Transaction Documents, (i)
the Obligor under the Contract related to such Receivable
shall not be a resident of such State, (ii) the related
Manufactured Home shall not be located in such State and (iii)
the Title for such Manufactured Home shall not be, and shall
not be required to be, issued by such State or any
subdivision, agency, bureau or court thereof; and
(yyy) until such time as the Agent has received a "no
objection" letter, in form and substance satisfactory to the
Agent, from the appropriate regulatory
body in the State of Maryland which explicitly states that
both the Conduit and CSFB are exempt from any requirement in
such State to obtain any licenses, permits and/or approvals or
to submit any notifications or registrations in connection
with the transactions contemplated by the Transaction
Documents, (i) the Obligor under the Contract related to such
Receivable shall not be a resident of such State, (ii) the
related Manufactured Home shall not be located in such State
and (iii) the Title for such Manufactured Home shall not be,
and shall not be required to be, issued by such State or any
subdivision, agency, bureau or court thereof; and
(zzz) until such time as the Agent has received a "no
objection" letter, in form and substance satisfactory to the
Agent, from the appropriate regulatory body in the State of
New York which explicitly states that each of the Seller, the
Conduit and CSFB are exempt from any requirement in such State
to obtain any licenses, permits and/or approvals or to submit
any notifications or registrations in connection with the
transactions contemplated by the Transaction Documents, (i)
the Obligor under the Contract related to such Receivable
shall not be a resident of such State, (ii) the related
Manufactured Home shall not be located in such State and (iii)
the Title for such Manufactured Home shall not be, and shall
not be required to be, issued by such State or any
subdivision, agency, bureau or court thereof;
(aaaa) until such time as the Agent has received a
"no objection" letter, in form and substance satisfactory to
the Agent, from the appropriate regulatory body in the
Commonwealth of Pennsylvania which explicitly states that both
the Conduit and CSFB are exempt from any requirement in such
Commonwealth to obtain any licenses, permits and/or approvals
or to submit any notifications or registrations in connection
with the transactions contemplated by the Transaction
Documents, (i) the Obligor under the Contract related to such
Receivable shall not be a resident of such Commonwealth, (ii)
the related Manufactured Home shall not be located in such
Commonwealth and (iii) the Title for such Manufactured Home
shall not be, and shall not be required to be, issued by such
Commonwealth or any subdivision, agency, bureau or court
thereof; and
(bbbb) which relates to a Contract of a type, and was
originated by a Dealer or HomePride in a State, that, in each
case, was addressed in an Opinion of Counsel delivered in
accordance with Section 7.01(l) or Section 7.02(j) hereof and
such Opinion of Counsel did not disclose any federal, state or
local licensing, registration, notification or similar
requirements with respect to such Receivable which are
applicable to (i) HomePride, HomePride SPV or the Seller,
other than that those that have been satisfied by HomePride,
HomePride SPV or the Seller, as applicable, or (ii) the Agent,
the Investor or any Bank.
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1.2 Section 7.02 of the RPA is hereby amended by deleting
clause (j) thereof and inserting in its place the following:
(j) HomePride shall have provided Agent an Opinion of
Counsel in a form consistent with the form contemplated by
Section 7.01(l) that (i) updates all prior Opinions of Counsel
delivered in accordance with Section 7.01(l) and this Section
7.02(j) (each, a "Prior Opinion") and (ii) identifies each
State of the United States in which HomePride, HomePride SPV
or the Seller has satisfied the state and local licensing,
registration, notification and similar requirements (each, a
"License") with respect to the transactions contemplated by
the Transaction Documents (each, a "Consumer Transaction") and
states that no other state, local or federal Licenses are
required for the Consumer Transactions consummated to date.
The Opinion of Counsel referenced in the previous sentence
shall be required if, and only if, HomePride shall have
consummated any Consumer Transactions not addressed by any
Prior Opinion; and
(k) The Agent shall have received such other
approvals, opinions or documents as it may request.
SECTION 2. Conditions to Effectiveness. The amendments contained in
this Amendment shall not become effective until the Agent shall have received an
executed counterpart of this Amendment duly executed by each party thereto.
SECTION 3. Representations and Warranties. Each of the Seller and the
Servicer reaffirms and restates the representations and warranties set forth in
the RPA and any agreement, document or instrument related thereto, and certifies
that such representations and warranties are true and correct on the date hereof
with the same force and effect as if made on such date, except as they may
specifically refer to an earlier date, in which case they were true and correct
as of such date. In addition, the Seller and the Servicer each represents and
warrants (which representations and warranties shall survive the execution and
delivery hereof) that (a) no Termination Event (nor any event that but for
notice or lapse of time or both would constitute an Termination Event) shall
have occurred and be continuing as of the date hereof nor shall any Termination
Event (nor any event that but for notice or lapse of time or both would
constitute a Termination Event) occur due to this Amendment becoming effective,
(b) the Seller and the Servicer each has the corporate power and authority to
execute and deliver this Amendment and has taken or caused to be taken all
necessary corporate actions to authorize the execution and delivery of this
Amendment, and (c) no consent of any other person (including, without
limitation, shareholders or creditors of the Seller or the Servicer), and no
action of, or filing with any governmental or public body or authority is
required to authorize, or is otherwise required in connection with the execution
and performance of this Amendment other than such that have been obtained.
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SECTION 4. Reference to and Effect on the Documents.
4.1 On and after the date on which this Amendment becomes
effective pursuant to Section 2 of this Amendment, each reference in
the RPA to "this Agreement" shall refer to the RPA as amended hereby
and each reference in the RPA to "hereunder", "hereof", "herein", or
words of like import shall mean and be a reference to the RPA as
amended hereby. On and after the date on which this Amendment becomes
effective pursuant to Section 2 of this Amendment, each reference to
the RPA in any agreement, document or instrument related to the RPA
shall mean and be a reference to the RPA as amended hereby.
4.2 Except as expressly amended above, the RPA shall remain in
full force and effect and is hereby ratified and confirmed in all
respects.
4.3 The execution and delivery of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Investor, any Bank or the Agent under the RPA
nor constitute a waiver of any provision of the RPA.
SECTION 5. Governing Law. THIS AMENDMENT SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS
OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION.
SECTION 6. Execution in 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 an original and all
of which when taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
[Signature pages to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SELLER: GSS HOMEPRIDE CORP.
By: /s/ Frank B. Bilotta
-------------------------------
Name: Frank Bilotta
Title: President
INVESTOR: GREENWICH FUNDING CORP.
By: Credit Suisse First Boston, New York
Branch, as its Attorney-In-Fact
By: /s/ Mark Lengel
-------------------------------
Name: Mark Lengel
Title: Vice President
By: /s/ Mark Golombeck
-------------------------------
Name: Mark Golombeck
Title: Vice President
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BANK: CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
By: /s/ Anthony Giordano
-------------------------------
Name: Anthony Giordano
Title: Director
By: /s/ Alberto Zonca
-------------------------------
Name: Alberto Zonca
Title: Vice President
AGENT: CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
AS AGENT
By: /s/ Anthony Giordano
-------------------------------
Name: Anthony Giordano
Title: Director
By: /s/ Alberto Zonca
-------------------------------
Name: Alberto Zonca
Title: Vice President
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SERVICER: HOMEPRIDE FINANCE CORP., AS SERVICER
By: /s/ Anthoney S. Cleberg
-------------------------------
Name: Anthoney S. Cleberg
Title: Vice President
SUB-SERVICER: THE CIT GROUP/SALES FINANCING, INC.
By: /s/ Ron G. Arrington
-------------------------------
Name: Ron G. Arrington
Title: Executive Vice President
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