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EXHIBIT 10.47
FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMEN
THIS FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT dated
as of November 30, 1995 (this "First Amendment") is made and entered into by
and between KERR GROUP, INC., a Delaware corporation, as seller and initial
servicer (the "Seller"), and PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as purchaser (the "Purchaser"), with respect to that certain
Receivables Purchase Agreement dated as of January 19, 1995, as amended by
those certain letter amendments dated February 24, 1995 and April 18, 1995 (the
"Existing Agreement"), each by and between the Seller and the Purchaser. As
used herein, the term "Agreement" means the Existing Agreement as amended by
this First Amendment; and all other capitalized terms used herein shall have
the respective meanings specified in accordance with Section 4.04 of this First
Amendment.
WITNESSETH:
WHEREAS, the Seller has requested that the Purchaser amend the
Existing Agreement as set forth herein;
WHEREAS, the Purchaser is willing to agree to the Seller's
request to amend the Existing Agreement upon the terms and conditions set forth
in this First Amendment.
NOW THEREFORE, in consideration of the premises (each of which
is incorporated herein by reference), the Seller and the Purchaser, intending
to be legally bound hereby, hereby agree as follows:
ARTICLE I
AMENDMENTS TO EXISTING AGREEMENT
Section 1.01 Amendments to Section 1.1 of the Existing Agreement.
(a) The defined term "Affiliated Obligor" set forth in
Section 1.1 of the Existing Agreement is hereby amended and restated to read as
follows:
"Affiliated Obligor" in relation to any Obligor means an
Obligor which Seller knows, or has reason to believe, to be an
Affiliate of such Obligor.
(b) The defined term "Allocation Minimum" set forth in
Section 1.1 of the Existing Agreement is hereby amended and restated to read as
follows:
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"Allocation Minimum" means the greater of (i) 30%, or (ii) the
Minimum Deferred Purchase Price Percentage.
(c) The defined term "Amendment Fee" set forth below is
hereby added to Section 1.1 of the Agreement and shall read as follows:
"Amendment Fee" shall have the meaning ascribed to it in
Section 5.1(d).
(d) The defined term "Designated Purchase Date" set forth
in Section 1.1 of the Existing Agreement is hereby amended and restated to read
as follows:
"Designated Purchase Date" means any Business day during a
Monthly Accounting Period, which is not a Semi-Monthly Reporting Date,
a Semi-Monthly Settlement Date, a Monthly Report Date, a Monthly
Settlement Date or the Business Day following a Semi-Monthly Reporting
Date or a Monthly Reporting Date, and which is designated by Seller on
at least two (2) Business Days prior written notice to Purchaser as a
date on which Seller desires to sell Eligible Receivables to
Purchaser; provided that Seller may designate no more than six (6)
such dates during a Monthly Accounting Period.
(e) The defined term "Fees" set forth in Section 1.1 of
the Existing Agreement is hereby amended and restated to read as follows:
"Fees" shall mean collectively the Structuring Fee, the
Commitment Fee, the Administrative Fee and the Amendment Fee; and the
term "Fee" shall mean any of the Fees.
(f) The defined term "First Amendment" set forth below is
hereby added to Section 1.1 of the Agreement and shall read as follows:
"First Amendment" means that certain First Amendment to
Receivables Purchase Agreement dated as of November 30, 1995 by and
between the Seller and the Purchaser.
(g) The defined term "First Amendment Effective Date" set
forth below is hereby added to Section 1.1 of the Agreement and shall read as
follows:
"First Amendment Effective Date" shall have the meaning
ascribed to it in Section 3.02 of the First Amendment.
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(h) The defined term "Letter Amendment" set forth below
is hereby added to Section 1.1 of the Agreement and shall read as follows:
"Letter Amendment" means that certain letter amendment dated
February 24, 1995 by and between the Seller and the Purchaser.
(i) Clause (ii) of the defined term "Material Adverse
Effect" set forth in Section 1.1 of the Existing Agreement is hereby amended
and restated to read as follows:
(ii) the ability of Seller or, if Seller or an Affiliate
of Seller is acting as Servicer or Sub-Servicer, Servicer or Sub-
Servicer to perform its respective obligations under this Agreement or
an Assignment;
(j) The defined term "Maximum Purchaser's Net Investment"
set forth in Section 1.1 of the Existing Agreement is hereby amended and
restated to read as follows:
"Maximum Purchaser's Net Investment" means Thirteen Million
Five Hundred Thousand Dollars ($13,500,000).
(k) The defined term "Sub-Servicer" set forth below is
hereby added to Section 1.1 of the Agreement and shall read as follows:
"Sub-Servicer" means one or more Persons that are appointed by
Purchaser in accordance with Section 7.1(c) or Section 7.2(j) of this
Agreement, to act on the behalf of the Purchaser in its capacity as
Servicer in the administration, servicing and collection of the Sold
Receivables.
Section 1.02 Amendments to Section 2.5(b) of the Existing
Agreement. The defined term "Current Purchase Price Percentage" set forth in
Section 2.5(b) of the Existing Agreement is hereby amended and restated to read
as follows:
"Current Purchase Price Percentage" equals the lesser of (i)
70%, or (ii) 1.00 - (15 x NCR)
Section 1.03 Deletion of Existing Section 4.21 of the
Existing Agreement and Addition of New Section 4.21. Section 4.21 of the
Existing Agreement is hereby deleted from the Agreement, and the Existing
Agreement is hereby amended to add to the Agreement a new Section 4.21 which
shall read as follows:
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4.21 Use of Proceeds. The Seller shall use the proceeds
of any Current Purchase Price Payment exclusively (i) to pay Earned
Discount, Seller Adjustments, Fees and other costs, and expenses
hereunder and under the other Receivables Documents, and (ii) to fund
working capital purposes of the Seller; but in no event shall the
proceeds of any Current Purchase Price Payment be used to prepay any
indebtedness of Seller for borrowed money except indebtedness for
borrowed money owed to Purchaser.
Section 1.04 Amendments to Section 5.1 of the Existing
Agreement. Subsection 5.1 of the Existing Agreement is hereby amended (i) to
delete from Subsection (c) thereof the reference therein to "$10,000" and to
substitute therefor the amount of $20,000, and (ii) to add thereto a new
Subsection (d) which shall read as follows:
(d) Amendment Fee. In consideration for the amendment of
the receivables purchase facility as set forth in the First Amendment,
Seller shall pay to Purchaser an amendment and restructuring fee (the
Amendment Fee") on the First Amendment Effective Date equal to
$135,000.
Section 1.05 Amendments to Section 6.14 of the Existing
Agreement. Section 6.14 of the Existing Agreement is hereby amended to add new
Subsections (d) and (e) thereto which shall read as follows:
(d) Effective on and as of the First Amendment Effective
Date, Seller hereby agrees that Seller shall maintain Lockboxes and
Lockbox Accounts for the collection of Pool Receivables only with the
Purchaser. To such end Seller agrees (i) to comply with the
provisions of Subsection (e) below, and (ii) to immediately direct all
Obligors to direct the payment of Pool Receivables to one or more
Lockboxes maintained at Purchaser. Notwithstanding any other
provision herein to the contrary, any Lockboxes and related Lockbox
Accounts currently maintained with the Purchaser, and any additional
Lockboxes and related Lockbox Accounts newly established with the
Purchaser in accordance with the directives of this Subsection
6.14(d), shall be titled or retitled, as the case may be,
substantially as "PNC Bank, National Association, Collection Account
re: Kerr Group, Inc., - Sold Receivables", with such additional
identifying information as the Purchaser may deem appropriate. The
Seller hereby agrees that the Purchaser shall have exclusive dominion
and control over, and ownership of, all such Lockboxes and related
Lockbox Accounts and all Collections of Sold Receivables, whether in
the form of checks, monies, instruments and other property
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from time to time in it; without limitation, the Purchaser shall have
the sole right to make withdrawals from all such Lockboxes and related
Lockbox Accounts. Purchaser acknowledges that Collections with
respect to Pool Receivables which are not Sold Receivables may be
delivered to a Lockbox, and that Collections in the form of wire
transfers with respect to Pool Receivables which are not Sold
Receivables may be directed to a Lockbox Account maintained at the
Purchaser. Any such Collections of Pool Receivables which are not
Sold Receivables shall be processed in accordance with the terms of
the applicable Lockbox Agreement, but any such processing shall not be
deemed to diminish or impair the exclusive dominion and control over,
and ownership of, all such Lockboxes and related Lockbox Accounts by
the Purchaser.
(e) Within ten (10) days after the First Amendment
Effective Date, the Seller will obtain an agreement duly executed and
delivered by Harris Trust and Savings Bank ("Harris"), in form and
substance satisfactory to Purchaser, containing the following terms
and conditions: (i) complete dominion and control of Lockboxes No.
71861 and 95321, and a related Lockbox Account No. 3133766 maintained
at Harris, shall be transferred to Purchaser; (ii) Harris shall
establish and maintain a separate demand deposit account (the "Seller
Account") in the name of Seller to receive collections with respect to
Pool Receivables which are not Sold Receivables; (iii) Harris will
identify items for deposit into the Seller Account or into the Lockbox
Account as follows: (x) items which are accompanied by a reference to
invoices which have been identified on an Assignment executed by the
Seller will be segregated for deposit into the Lockbox Account; (y)
items which are accompanied by a reference to invoices which have not
been identified on an Assignment executed by the Seller will be
segregated for deposit into the Seller Account; and (z) items lacking
a reference to an invoice will be held by Harris for further
identification, and the Seller
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shall covenant and agree to assist Harris in any identification
process; (iv) Harris shall process electronic funds transfers received
by Harris with respect to Pool Receivables as follows: (x) electronic
funds transfers which are accompanied by a reference to invoices which
have been identified on an Assignment executed by the Seller will be
re-directed for deposit into the Lockbox Account; (y) electronic funds
transfers which are accompanied by a reference to invoices which have
not been identified on an Assignment executed by the Seller will be
deposited into the Seller Account; and (z) electronic funds transfers
lacking a reference to an invoice will be held by Harris for further
identification, and the Seller shall covenant and agree to assist
Harris in any identification process; (v) Harris and Seller shall
provide to Purchaser such information concerning Collections and
applications as Purchaser may reasonably request; (vi) Seller shall be
solely responsible for any increased costs and expenses resulting from
such agreement; and (vii) Purchaser may deliver to Harris a directive
in the form of Annex A to the Lockbox Letter Agreement among Seller,
Purchaser and Harris, dated January 19, 1995, at any time hereafter
when Purchaser, in the exercise of its sole discretion, determines
that such an action is necessary for the protection of its rights and
interest hereunder. In the event an agreement meeting the foregoing
requirements is not executed and delivered to Purchaser on or before
the tenth (10th) day after the First Amendment Effective Date,
Purchaser shall have the right to deliver to Harris a directive in the
form of Annex A to the Lockbox Letter Agreement.
Section 1.06 Amendment of the Existing Agreement to Add a
New Section 6.19. The Existing Agreement is hereby amended to add to the
Agreement a new Section 6.19 which shall read as follows:
6.19. Use of Proceeds. The Seller will use the proceeds of
a Current Purchase Price Payment only for lawful purposes in
accordance with Section 4.13 and Section 4.21 hereof as applicable and
such uses shall not contravene any applicable Law or any other
provision hereof. The Seller hereby specifically covenants and agrees
that in no event shall the proceeds of any Current Purchase Price
Payment be used to prepay any indebtedness of Seller for borrowed
money except indebtedness for borrowed money owed to Purchaser.
Section 1.07 Amendment of the Existing Agreement to Add a
New Section 6.20. The Existing Agreement is hereby amended to add to the
Agreement a new Section 6.20 which shall read as follows:
6.20. Liens. The Seller shall not at any time create,
incur, assume or suffer to exist any Lien on any of property or
assets, tangible or intangible, now owned or hereafter acquired, or
agree or become liable to do so, except Liens permitted under Section
10.2 of the Note Agreement or otherwise consented to in writing by
Purchaser.
Section 1.08 Amendments to Section 7.1 of the Existing
Agreement. Section 7.1 of the Existing Agreement is hereby amended and
restated to read as follows:
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7.1. Designation of Seller as Initial Servicer; Designation of
Purchaser as Successor Servicer
(a) Designation of Seller as Initial Servicer. Seller
hereby grants to Purchaser an irrevocable power of attorney (coupled
with an interest) to designate a Person for the purpose of servicing,
administering and collecting the Sold Receivables. Purchaser hereby
designates and appoints Seller as the agent of Purchaser and Seller
(Seller in such capacity herein, together with any successor servicer
of the Sold Receivables, referred to as the "Servicer") as the initial
Servicer for the purpose of servicing, administering and collecting
the Sold Receivables.
(b) Designation of Purchaser as a Successor Servicer.
Effective on and as of the First Amendment Effective Date, Purchaser
and Seller hereby agree that Seller is discharged from its duties
under this Article VII as Servicer. Purchaser hereby assumes the role
as Servicer for the purpose of servicing, administering and collecting
the Sold Receivables, and the Seller hereby expressly agrees and
consents to such assumption by the Purchaser of the role of Servicer
for the Sold Receivables.
(c) Designation of Seller as a Sub-Servicer. Effective
on and as of the First Amendment Effective Date, Purchaser hereby
appoints Seller to act as an agent of Purchaser in its capacity as
Servicer to perform such duties with respect to the servicing,
administering and collecting the Sold Receivables as the Purchaser may
direct from time to time (the Seller in such Capacity is herein
referred to as the "Sub-Servicer"). So long as Seller shall act as
Sub-Servicer under this Agreement, Seller shall pay and be responsible
for all costs, expenses and attorneys' fees incurred by Servicer and
the Sub-Servicer in connection with the performance of their
respective obligations under this Article VII. So long as Seller is
Sub-Servicer, Seller hereby acknowledges that the purchase of the Sold
Receivables, the incurrence by Purchaser of the risk of collection
with respect to the Sold Receivables and the payment to Sub-Servicer
of income (if any) on investments from the Servicer Deposit Account
constitutes adequate consideration for the services of Sub-Servicer
hereunder.
Section 1.09 Amendments to Section 7.2 of the Existing
Agreement. Section 7.2 of the Existing Agreement is hereby amended to
add a new Subsection 7.2(j) and such new Subsection shall read as
follows:
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(j) Authority to Appoint Sub-Servicer. At any time that
the Purchaser is the Servicer, the Purchaser is hereby authorized to
appoint one or more Persons, one of which may be the Seller, as the
agent of the Purchaser to perform one or more duties of the Purchaser
as Servicer hereunder. The duties of the Sub-Servicer shall be set
forth from time to time by the Purchaser pursuant to one or more
separate written directives.
Section 1.10 Amendments to Section 7.9 of the Existing
Agreement. Section 7.9 of the Existing Agreement is hereby amended
and restated to read as follows:
7.9. Servicer Deposit Account. On the date hereof
Servicer shall cause to be established, and at all times prior to the
Final Payout Date, Servicer shall cause to be maintained, one or more
segregated trust accounts at Purchaser in the name of Servicer, as
trustee for Purchaser (collectively, the "Servicer Deposit Account").
The Servicer Deposit Account shall be used for the deposit of funds
set aside pursuant to clauses (ii), (iii) and (iv) of Section 2.6(a)
and no other funds. No deposit of funds in the Servicer Deposit
Account shall be deemed to reduce the Purchaser's Net Investment,
unless and until such funds are actually paid to Purchaser in
accordance with Section 2.6 or 2.7. Except during any Liquidation
Period, funds on deposit in the Servicer Deposit Account shall be
invested in overnight deposits, selected by Seller but acceptable to
Purchaser, and the income from such investments shall be added to the
balance in such account. During any Liquidation Period, any moneys
credited to the Servicer Deposit Account will remain uninvested.
Except upon the commencement of, and during the continuance of, any
Liquidation Period, all income on the overnight investments of the
funds on deposit in the Servicer Deposit Account shall be paid to
Servicer, if Seller or an Affiliate of Seller is the Servicer, or to
Sub-Servicer, if Seller or an Affiliate of Seller is the Sub-Servicer,
on the Semi-Monthly Settlement Date following any credit of such
income to the Servicer Deposit Account as consideration for servicing
the Sold Receivables. Upon the commencement of any Liquidation
Period, all accrued and unpaid income on the overnight investments of
the funds on deposit in the Servicer Deposit Account shall be paid to
Purchaser on the Semi-Monthly Settlement Date following any credit of
such accrued income to the Servicer Deposit Account and shall be
applied to reduce the Purchaser's Net Investment. Any losses on the
investment of sums deposited in the Servicer Deposit Account shall be
for the account of Seller. On the Final Payout Date, after payment of
all sums due and owing to Purchaser
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any remaining balance in the Servicer Deposit Account shall be
released to Seller. Notwithstanding any other provision herein to the
contrary, on and as of the First Amendment Effective Date, the
Servicer Deposit Account shall be retitled substantially as "PNC Bank,
National Association, Servicer Deposit Account re: Kerr Group, Inc., -
Sold Receivables", with such additional identifying information as the
Purchaser may deem appropriate. The Seller hereby agrees that the
Purchaser shall have exclusive dominion and control over, and
ownership of, the Servicer Deposit Account and all monies, instruments
and other property from time to time in it; without limitation, the
Purchaser shall have the sole right to make withdrawals from the
Servicer Deposit Account.
Section 1.11 Amendments to Section 8.1 of the Existing
Agreement.
(a) Subsection 8.1(h) of the Existing Agreement is hereby
amended and restated to read as follows:
8.1(h) Current Default Ratio and Net Charge-Off Ratio. The
Current Default Ratio as of any Relevant Month End Date exceeds
[3.00%]; (ii) the average of the Current Default Ratios as of any
three consecutive Month End Dates exceeds [1.75%]; or (iii) the Net
Charge-Off Ratio exceeds [1.20%]; or
(b) Subsection 8.1(k) of the Existing Agreement is hereby
amended and restated to read as follows:
8.1(k) Delinquency Ratio. Either (A) the Delinquency Ratio
at any Relevant Month End Date is greater than [2.60%]; or (B) the
average of the Delinquency Ratios at any three consecutive Month End
Dates is greater than [2.00%];
(c) Subsection 8.1(m) of the Existing Agreement is hereby
amended and restated to read as follows:
8.1(m) Cumulative Dilution. As of any Month End Date, the
aggregate dollar amount of Dilutions accruing in the twelve-month
period ending on such Month End Date equals or exceeds [$20,000,000].
Section 1.12 Amendment to Section 9.1 of the Existing
Agreement. Section 9.1 of the Existing Agreement is hereby amended to insert
the phrase "or Sub-Servicer" immediately after the reference to "Servicer" set
forth in the twelfth line thereof.
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Section 1.13 Amendment to Section 10.1(b)(vii) of the
Existing Agreement. Clause (vii) of Section 10.1(b) of the Existing Agreement
is hereby amended and restated to read as follows:
(vii) any failure of Seller, as Servicer, Sub-Servicer or
otherwise, to perform any of its duties or obligations in accordance
with the provisions of Article VI or VII hereof, or in accordance with
the provisions of any written direction delivered to Seller in its
capacity as Sub-Servicer pursuant to Sections 7.1(c) and 7.2(j)
hereof.
Section 1.14 Addition of Exhibit "I-1" to the Agreement.
The Existing Agreement is hereby amended to add as an exhibit thereto Exhibit
"I-1" attached hereto and made a part hereof.
Section 1.15 No Other Amendments.
(a) Except as expressly provided in this First Amendment,
this First Amendment is not intended to, shall not, and shall not be deemed or
construed to, at any time, either explicitly or implicitly: (i) alter, waive
or amend any of the provisions of the Existing Agreement or any other
Receivables Document; (ii) waive, retroactively, now or in the future, due,
timely or full performance of, compliance with, or satisfaction of any
covenant, agreement, term, condition or other provision to be performed,
complied with, or satisfied by the Seller at any time before, on or after the
date hereof under or pursuant to the Agreement or any other Receivables
Document as in effect at the time in question; or (iii) impair any right or
remedy of (or available to) the Purchaser before, on or after the date hereof
under the Existing Agreement, any other Receivables Document or otherwise
(including, without limitation, any such right or remedy which may at any time
exist or arise with respect to the occurrence, existence or continuance at any
time of (x) any Termination Event or Potential Termination Event, (y) any
default under any of the other Receivables Documents, or (z) any breach or
violation of any covenant, agreement, term, condition or other provision
referred to in clause (ii) of this Subsection 1.15(a)).
(b) This First Amendment is not intended to, shall not,
and shall not be deemed or construed to, establish (either explicitly or
implicitly): (i) any course of dealing, course of performance or course of
conduct between the Purchaser; or (ii) any obligation or agreement of any
nature whatsoever on the part of the Purchaser with respect to (A) any other or
further amendment, waiver or consent regarding the Agreement or any other
Receivables Document, or (B) any forbearance from the exercise of
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any right or remedy of (or available to) the Purchaser under the Agreement, any
other Receivables Document or otherwise.
ARTICLE II
SELLER'S SUPPLEMENTAL REPRESENTATIONS
As an inducement to the Purchaser to enter into this First
Amendment, the Seller hereby represents and warrants to the Purchaser that:
Section 2.01 Incorporation by Reference. The Seller
hereby repeats herein, for the benefit of the Purchaser, each of the
representations and warranties made by the Seller in Article IV of the Existing
Agreement, except that, for the purposes hereof, such representations and
warranties (i) shall be deemed to be made by the Seller on and as of the First
Amendment Effective Date and (ii) shall also extend to and cover (A) this First
Amendment and (B) the Existing Agreement, as amended by this First Amendment.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent. The execution and
delivery by the Purchaser of this First Amendment, and the effectiveness of
this First Amendment, is subject to the satisfaction by the Seller, on or
before November 30, 1995, of each of the following conditions:
(i) The Purchaser shall have received, on or before the
First Amendment Effective Date (as hereinafter defined) the following items,
each, unless otherwise indicated, dated the First Amendment Effective Date, and
each in form and substance satisfactory in all respects to the Purchaser and
the Purchaser's special counsel, Tucker Arensberg, P.C. ("Purchaser's
Counsel"):
(A) A duly executed counterpart original of this
First Amendment, duly executed and delivered by the Seller;
(B) A duly executed, counterpart original of the
First Amendment to Servicer Deposit Account Agreement substantially in the form
of Exhibit "I-1" hereto;
(C) A duly executed, counterpart original of
direction to Harris Trust and Savings Bank transferring control of any Lockbox
and Lockbox Account maintained at Harris Trust and Saving Bank to Purchaser;
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(D) A certified copy of the corporate action of
the Seller authorizing the Seller's execution, delivery and performance of this
First Amendment;
(E) A certificate of the secretary (or an
assistant secretary) of the Seller certifying the names and incumbency of the
officers of the Seller who are authorized to sign this First Amendment and all
other documents and certificates delivered hereunder, together with the true
signatures of such officers;
(F) A certificate signed by a responsible officer
of Seller and dated the First Amendment Effective Date, stating that the
representations and warranties contained in Article IV and in any instrument,
agreement or certificate executed and delivered in connection herewith are then
true and accurate in all material respects as though made on and as of the
First Amendment Effective Date;
(G) Evidence satisfactory to Purchaser that
Seller is duly organized and validly existing and in good standing under the
laws of the State of Delaware, is duly qualified as a foreign corporation and
in good standing in the State of California and the Commonwealth of
Pennsylvania, and has paid all California corporate taxes which are due and
payable;
(H) A certified copy of each search report,
certified by the appropriate filing officer (or a similar certificate of
counsel admitted to practice in the appropriate jurisdiction), showing that no
financing statements or similar statements or notices of tax levies,
assessments or liens have been filed with respect to, and then presently cover,
any Receivables (except those financing statements filed pursuant to this
Agreement in favor of Purchaser and those financing statements or notices (if
any) as may be otherwise approved by Purchaser, in writing);
(I) The payment in full of the Amendment Fee;
(J) The payment of the reasonable fees and
expenses of counsel to the Purchaser, including without limitation the cost of
any UCC lien and tax lien searches concerning the Seller;
(K) Such other evidence as Purchaser may
reasonably request to establish the consummation of the transactions
contemplated hereby, the taking of all proceedings in connection herewith and
compliance with the conditions set forth in this First Amendment;
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(L) All material consents of all applicable
Governmental Persons and third parties, including without limitation such
sublicenses and consents as the Purchaser shall require with regard to all
programs owned or leased by Seller and used in the servicing of any Pool
Receivables, required to effectuate the transactions contemplated hereby shall
have been obtained;
(M) A duly executed counterpart original of the
direction letter from Servicer to Sub-Servicer, duly executed and delivered by
the Seller, in its capacity as Sub-Servicer; and
(N) Such other instruments, documents and
opinions of counsel as the Purchaser shall reasonably require, each of which
shall be satisfactory in form and substance in all respects to the Purchaser
and Purchaser's Counsel.
(ii) The following statements shall be true and correct on
the First Amendment Effective Date, and the Purchaser shall have received a
certificate signed by an authorized officer of the Seller, dated the First
Amendment Effective Date, and in form and substance satisfactory in all
respects to the Purchaser and Purchaser's Counsel, certifying, on and as of the
First Amendment Effective Date, that:
(A) the representations and warranties of the
Seller contained in Section 2.01 of this First Amendment, and in each of the
other Receivables Documents to which the Seller is a party, are true and
correct on and as of the First Amendment Effective Date as though made on and
as of such date;
(B) no petition by or against the Seller has at
any time been filed under the United States Bankruptcy Code or under any
similar act;
(C) no Termination Event under the Existing
Agreement, nor any default under any of the other Receivables Documents, has
occurred and is continuing, and no Termination Event or Potential Termination
Event under the Existing Agreement, nor any default under any of the other
Receivables Documents, would result from the execution and delivery of this
First Amendment; and
(D) the Seller has in all material respects
performed all agreements, covenants and conditions required to be performed by
it on or prior to the First Amendment Effective Date under the Existing
Agreement and the other Receivables Documents.
Section 3.02 First Amendment Effective Date. For the
purposes of this First Amendment, the term "First Amendment
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Effective Date" shall mean the first Business Day on which the Purchaser and
Purchaser's counsel determine that each of the conditions set forth in Section
3.01 hereof has been either (i) satisfied by the Seller, to the satisfaction of
the Purchaser and Purchaser's counsel, or (ii) expressly waived by the
Purchaser; provided, however, that the amendment set forth in Section 1.01(b)
of this First Amendment shall not become effective until immediately after the
first Purchase to occur after the First Amendment Effective Date. If the First
Amendment Effective Date does not occur on or before November 30, 1995, then,
at the option of the Purchaser, this First Amendment shall be null and void and
of no legal effect, and the Purchaser shall have no duty or obligation with
respect to any amendment or waiver contemplated hereby.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 Ratification of Terms. Except as and to the
extent expressly amended by this First Amendment, the Existing Agreement and
the other Receivables Documents, and each and all of the representations,
warranties, covenants, agreements, terms, conditions and other provisions
respectively contained therein, are hereby specifically ratified and confirmed.
Section 4.02 References. All notices, communications,
agreements, certificates, documents or other instruments executed and delivered
after the execution and delivery of this First Amendment may refer to the
Existing Agreement without making specific reference to this First Amendment,
but nevertheless all such references shall be deemed to refer to and include
this First Amendment unless expressly stated, or the context requires,
otherwise.
Section 4.03 Counterparts. This First Amendment may be
executed in as many different counterparts as may be convenient, each of which
when executed by the Seller and the Purchaser shall be regarded as an original
and all such counterparts shall constitute one First Amendment. The delivery of
an executed counterpart signature page to this First Amendment by telecopier
shall be effective as a delivery of an executed original counterpart hereto.
Section 4.04 Capitalized Terms and Definitions. Except
for proper nouns and except as otherwise defined herein, all capitalized terms
used herein shall have the respective meanings specified in the Existing
Agreement, as amended by this First Amendment.
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Section 4.05 First Amendment Effective Date; References,
Capitalized Terms and Definitions. From and after the First Amendment
Effective Date: (a) each reference in the Existing Agreement and the other
Receivables Documents to the Agreement shall be deemed to be a reference to the
Existing Agreement, as amended by this First Amendment; and (b) all capitalized
terms which are used in the Receivables Documents, and which (as stated
therein) are used therein with the respective meanings specified in the
Agreement, shall be deemed to have the respective meanings specified in the
Existing Agreement, as amended by this First Amendment.
Section 4.06 Taxes. The Seller shall pay any and all
stamp and other taxes and fees (if any) payable or determined to be payable in
connection with the execution, delivery, filing and recording of this First
Amendment and any other documents related hereto, and the Seller agrees to
indemnify and save the Purchaser harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission
to pay any of such taxes or fees.
Section 4.07 Indemnification and Contribution.
(a) Indemnification. The Seller shall (to the fullest extent
permitted by applicable law) indemnify, upon demand, the Purchaser and any
subsequent holder of the rights of the Purchaser under the Agreement and their
respective shareholders, controlling persons, directors, officers, employees
and agents (each of the foregoing an "Indemnified Party"), from, and hold each
of them harmless against, any and all losses, liabilities, claims, damages or
expenses to which any of them may become subject, insofar as such losses,
liabilities, claims, damages or expenses are awarded against or incurred by any
of them arising out of or relating to or resulting from (a) any actual or
proposed use by the Seller of any of the proceeds of any Current Purchase Price
Payment, or (b) the execution, delivery or performance of this First Amendment
or any other Receivables Document by the Seller or the Purchaser, or (c) the
inability or failure of the Seller to perform its obligations under the
Agreement and any other Receivables Documents, as amended, or any other
agreement between the Seller and a third party, or (d) any other transaction
arising out of or related to this First Amendment or any other Receivables
Document, or (e) any investigation, litigation or other proceeding (including
any threatened investigation or proceeding) relating to any of the foregoing
whether commenced by the Seller or any other Person; and the Seller shall
reimburse any Indemnified Party, upon demand, for any reasonable expenses
(including legal fees) incurred in connection with any such loss, liability,
claim, damage, expense, investigation, litigation or proceeding; but
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excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Indemnified Person
to be indemnified. The indemnification obligations of the Seller in this
Section 4.07 shall survive the payment in full of the Purchaser's Net
Investment.
(b) Contribution. If for any reason the indemnification
provided above in this Section 4.07 (and subject to the exceptions set forth
therein) is unavailable to an Indemnified Party (other than by a final
adjudication by a court of competent jurisdiction that a claim is not within
the scope of such indemnification) or is insufficient to hold an Indemnified
Party harmless, then Seller shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative benefits
received by such Indemnified Party on the one hand and Seller on the other hand
but also the relative fault of such Indemnified Party as well as any other
relevant equitable considerations.
Section 4.08 Costs and Expenses. The Seller will pay all
costs and expenses of the Purchaser (including, without limitation, the
reasonable fees and the disbursements of Purchaser's counsel and all fees and
expenses incurred by Purchaser or its independent accountants in connection
with the audit of the books and records of Seller pertaining to the Pool
Receivables) in connection with the preparation, execution and delivery of this
First Amendment.
Section 4.09 Governing Law. THIS FIRST AMENDMENT AND ALL
RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT
REGARD TO, OR GIVING EFFECT TO, THE PRINCIPLES OF SAID JURISDICTION REGARDING
CONFLICTS OF LAW.
Section 4.10 Headings. The headings used in this First
Amendment are used herein for convenience and for purposes of reference only,
and are not intended to, and shall not, limit or otherwise affect the meaning
of this First Amendment or any provision or part hereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, with the intent to be legally
bound hereby, have caused this First Amendment to Receivables Purchase
Agreement to be duly executed by their respective proper and duly authorized
officers as of the day and year first above written.
ATTEST (Seal) KERR GROUP, INC., a Delaware corporation, as
Seller, initial Servicer and Sub-Servicer
By /s/ L.R. Knipple By: /s/ Geoffrey A. Whynot
----------------------------------------- ---------------------------------------------------------
Name: Larry R. Knipple Name: Geoffrey A. Whynot
-------------------------------------- --------------------------------------------------------
Title: Secretary Title: Treasurer
------------------------------------ ------------------------------------------------------
PNC BANK, NATIONAL ASSOCIATION, as Purchaser and successor Servicer
By: /s/ Anthony L. Trunzo
---------------------------------------------------------
Name: Anthony L. Trunzo
-------------------------------------------------------
Title: Vice President and Manager
------------------------------------------------------
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FIRST AMENDMENT TO SERVICER DEPOSIT ACCOUNT AGREEMENT
THIS FIRST AMENDMENT TO SERVICER DEPOSIT ACCOUNT AGREEMENT
dated as of November 30, 1995 (this "First Amendment") is made and entered into
by and between KERR GROUP, INC., a Delaware corporation, as the seller of
Tendered Receivables (the "Seller"), and PNC BANK, NATIONAL ASSOCIATION (the
"Bank"), a banking association organized and existing under the laws of the
United States of America, for the benefit of PNC BANK, NATIONAL ASSOCIATION, a
national banking association, in its capacity as purchaser (the "Purchaser")
under the Purchase Agreement referred to below and as the new servicer of the
Sold Receivables (in such capacity, the "Servicer"), with respect to that
certain Servicer Deposit Account Agreement dated as of January 19, 1995 (the
"Existing Agreement"), by and between the Seller, the Bank, the Purchaser and
Seller in the capacity of Servicer. As used herein, the term "Agreement" means
the Existing Agreement as amended by this First Amendment; and all other
capitalized terms used herein shall have the respective meanings specified in
accordance with Section 2.04 of this First Amendment.
WITNESSETH:
WHEREAS, the Seller and Purchaser have entered into a
Receivables Purchase Agreement (the "Original Purchase Agreement") dated as of
January 19, 1995, whereby Seller agreed to sell, and Purchaser agreed to buy
Tendered Receivables and Related Assets of Seller;
WHEREAS, upon the assignment and transfer of the Tendered
Receivables and the Related Assets to Purchaser, such Tendered Receivables and
the Related Assets are referred to as the Sold Receivables;
WHEREAS, Seller was appointed as the initial servicer of the
Sold Receivables under the Original Purchase Agreement; and
WHEREAS, contemporaneously with the execution hereof, the
Original Purchase Agreement is being amended by a First Amendment to
Receivables Purchase Agreement dated November __, 1995 (the "First Amendment to
Purchase Agreement"); the Original Purchase Agreement, as amended by the First
Amendment to Purchase Agreement and as further amended from time to time
hereafter, the "Purchase Agreement");
EXHIBIT "I-1"
19
WHEREAS, pursuant to the terms of the First Amendment to
Purchase Agreement, the Seller is being removed as the servicer of the Sold
Receivables, and the Purchaser is to serve in the capacity of Servicer under
the Purchase Agreement;
WHEREAS, the Seller has requested that the Bank, the
Purchaser, and the Purchaser as the new Servicer, amend the Existing Agreement
as set forth herein;
WHEREAS, the Bank, Purchaser and Servicer are willing to agree
to the Seller's request to amend the Existing Agreement upon the terms and
conditions set forth in this First Amendment.
NOW THEREFORE, in consideration of the premises (each of which
is incorporated herein by reference), the Bank, Servicer, Seller and the
Purchaser, intending to be legally bound hereby, hereby agree as follows:
ARTICLE I
AMENDMENTS TO EXISTING AGREEMENT
Section 1.01 Purchaser to Replace Seller as Servicer.
From and after the date hereof, the term "Servicer", as used in the Agreement,
shall mean and refer to Purchaser, or a successor servicer appointed by
Purchaser pursuant to the Purchase Agreement.
Section 1.02 Retitling of the Servicer Deposit Account.
Notwithstanding the provisions of paragraph A. of the Existing Agreement, on
and as of the date hereof, the Servicer Deposit Account shall be retitled
substantially as "PNC Bank, National Association, Servicer Deposit Account re:
Kerr Group, Inc. - Sold Receivables", with such additional identifying
information as the Purchaser may deem appropriate.
Section 1.03 Amendment to Subparagraph B.(2) of the
Existing Agreement. The following clause is hereby deleted from Subparagraph
B.(2) of the Existing Agreement: ", including any obligations of Seller in its
capacity as Servicer,", and the following clause is hereby substituted
therefor:", including any obligations of Seller in its capacity as Sub-Servicer
(as such term is defined in the Purchase Agreement),".
Section 1.04 Amendment to Paragraph H. of the Existing
Agreement. The following parenthetical is hereby inserted into Paragraph H. of
the Existing Agreement immediately after the reference to the "Servicer" in the
first line thereof: "(if Servicer is a person other than Purchaser)".
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Section 1.05 Amendment to Subparagraph K.(1) of the
Existing Agreement. The address shown for Servicer in Subparagraph K.(1) of
the Existing Agreement is hereby deleted and the addresses shown for Purchaser
in Subparagraph K.(4) are substituted therefor.
Section 1.06 Amendment to Paragraph M. of the Existing
Agreement. The proviso in Paragraph M. of the Existing Agreement is hereby
deleted and the following language is substituted therefor:
"provided, however, that neither Servicer (if Servicer is
someone other than Purchaser) nor Seller may assign its rights or duties
hereunder without the prior written consent of Purchaser."
Section 1.07 No Other Amendments.
(a) Except as expressly provided in this First Amendment,
this First Amendment is not intended to, shall not, and shall not be deemed or
construed to, at any time, either explicitly or implicitly: (i) alter, waive
or amend any of the provisions of the Existing Agreement or any other
Receivables Document; (ii) waive, retroactively, now or in the future, due,
timely or full performance of, compliance with, or satisfaction of any
covenant, agreement, term, condition or other provision to be performed,
complied with, or satisfied by the Seller at any time before, on or after the
date hereof under or pursuant to the Agreement or any other Receivables
Document as in effect at the time in question; or (iii) impair any right or
remedy of (or available to) the Purchaser before, on or after the date hereof
under the Existing Agreement, any other Receivables Document or otherwise
(including, without limitation, any such right or remedy which may at any time
exist or arise with respect to the occurrence, existence or continuance at any
time of (x) any Termination Event or Potential Termination Event, (y) any
default under any of the other Receivables Documents, or (z) any breach or
violation of any covenant, agreement, term, condition or other provision
referred to in clause (ii) of this Subsection 1.07(a)).
(b) This First Amendment is not intended to, shall not,
and shall not be deemed or construed to, establish (either explicitly or
implicitly): (i) any course of dealing, course of performance or course of
conduct between the Purchaser; or (ii) any obligation or agreement of any
nature whatsoever on the part of the Purchaser with respect to (A) any other or
further amendment, waiver or consent regarding the Agreement or any other
Receivables Document, or (B) any forbearance from the exercise of any right or
remedy of (or available to) the Purchaser under the Agreement, any other
Receivables Document or otherwise.
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01 Ratification of Terms. Except as and to the
extent expressly amended by this First Amendment, the Existing Agreement, and
each and all of the representations, warranties, covenants, agreements, terms,
conditions and other provisions contained therein, are hereby specifically
ratified and confirmed.
Section 2.02 References. All notices, communications,
agreements, certificates, documents or other instruments executed and delivered
after the execution and delivery of this First Amendment may refer to the
Existing Agreement without making specific reference to this First Amendment,
but nevertheless all such references shall be deemed to refer to and include
this First Amendment unless expressly stated, or the context requires,
otherwise.
Section 2.03 Counterparts. This First Amendment may be
executed in as many different counterparts as may be convenient, each of which
when executed by the Seller and the Purchaser shall be regarded as an original
and all such counterparts shall constitute one First Amendment. The delivery of
an executed counterpart signature page to this First Amendment by telecopier
shall be effective as a delivery of an executed original counterpart hereto.
Section 2.04 Capitalized Terms and Definitions. Except
for proper nouns and except as otherwise defined herein, all capitalized terms
used herein shall have the respective meanings specified in the Existing
Agreement, as amended by this First Amendment or in the Purchase Agreement, as
appropriate.
Section 2.05 Costs and Expenses. The Seller will pay all
costs and expenses of the Purchaser and Bank (including, without limitation,
the reasonable fees and the disbursements of Purchaser's counsel) in connection
with the preparation, execution and delivery of this First Amendment.
Section 2.06 Governing Law. THIS FIRST AMENDMENT AND ALL
RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT
REGARD TO, OR GIVING EFFECT TO, THE PRINCIPLES OF SAID JURISDICTION REGARDING
CONFLICTS OF LAW.
Section 2.07 Headings. The headings used in this First
Amendment are used herein for convenience and for purposes
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of reference only, and are not intended to, and shall not, limit or otherwise
affect the meaning of this First Amendment or any provision or part hereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, with the intent to be legally
bound hereby, have caused this First Amendment to Servicer Deposit Account
Agreement to be duly executed by their respective proper and duly authorized
officers as of the day and year first above written.
ATTEST (Seal) KERR GROUP, INC., a Delaware
corporation, as Seller
By: By:
---------------------------- -------------------------------------
Name: Name:
-------------------------- -----------------------------------
Title: Title:
------------------------- ----------------------------------
PNC BANK, NATIONAL ASSOCIATION, as
Purchaser and Service
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PNC BANK, NATIONAL ASSOCIATION, as Bank
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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