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EXHIBIT 4.5
FIRST AMENDMENT
FIRST AMENDMENT (the "First Amendment"), dated as of September
13, 1994, to the Liquidity Agreement dated as of October 8, 1992 (the
"Liquidity Agreement") among Blue Hawk Funding Corporation (the "Company"), the
lenders party thereto (the "Liquidity Lenders") and General Electric Capital
Corporation, as agent for the Liquidity Lenders (the "Liquidity Agent").
Except as otherwise defined herein, terms used herein and defined in the
Liquidity Agreement shall be used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Company, the Liquidity Lenders and the Liquidity
Agent have entered into the Liquidity Agreement and now desire to amend certain
of the provisions thereof;
NOW, THEREFORE, it is agreed:
1. The definition of "Available Commitment" set forth in
Section 1.02 of the Liquidity Agreement is hereby amended and restated in its
entirety as follows:
""Available Commitment" means, as of any day, the aggregate
Outstanding Balance of all Receivables transferred to the Borrower on
or prior to such day that are not Defaulted Receivables; it being
understood that no Receivable shall be considered a Defaulted
Receivable for purposes of calculating the Available Commitment by
reason of any bankruptcy or insolvency proceeding in respect of
Broadway Receivables, Inc. (or by reason of any action or position
taken by Broadway Receivables, Inc. as a debtor in possession, or by a
bankruptcy trustee therefor, in any such bankruptcy or insolvency
proceeding)."
2. The definition of "Liquidity Termination Date" set
forth in Section 1.02 of the Liquidity Agreement is hereby amended by deleting
the date "October 30, 1995" set forth in clause (i) thereof and substituting in
place therefor the date "October 30, 1996".
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3. Section 2.01(a) of the Liquidity Agreement is hereby
amended by deleting the first sentence thereof and substituting in place
therefor the following:
"Subject to the provisions of this Section 2.01 and Article
VII hereof, so long as the Company and the Depositary are not in
receipt of instructions then in effect from the Liquidity Agent, given
in accordance with this Section 2.01(a), not to issue or deliver
Commercial Paper because (i) the Company shall have terminated the
Liquidity Commitment hereunder pursuant to Section 5.02 hereof, or
(ii) the condition specified in clause (c) of Section 7.02 hereof has
not been satisfied, or (iii) the Liquidity Commitment is otherwise
terminated in whole for any reason in accordance herewith or the
issuance of Commercial Paper is prohibited by the provisions of
Section 6.03 hereof, or (iv) any proceeding shall be instituted
against Broadway Receivables, Inc. by any holder of, or trustee for,
the Non-Affiliated Subordinated Notes seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any
substantial part of its property, and either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for
any substantial part of its property) shall occur, or (v) the rating
by any Rating Agency on the Commercial Paper shall be withdrawn or
reduced below the highest short-term rating category of such Rating
Agency (provided that if such reduction or withdrawal occurs after the
withdrawal or downgrading of a Liquidity Lender's rating by any Rating
Agency, the Company shall not be prohibited from issuing Commercial
Paper unless the Company shall not have replaced such downgraded
Liquidity Lender or reduced such downgraded Liquidity Lender's
Percentage of the Liquidity Commitment pursuant to Section 4.12
hereof, resulting in the Commercial Paper being rated in the highest
short-term rating category of each Rating Agency by the 90th day
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after the first date on which such rating of a Liquidity Lender was
withdrawn or downgraded) or (vi) any of the conditions set forth in
clauses (a), (b) or (d) of Section 7.02 hereof has not been satisfied,
the Company shall have the right from time to time prior to the
Liquidity Termination Date, and from time to time on and after the
Commercial Paper Effective Date, to issue and sell Commercial Paper
pursuant to this Agreement and the Depositary Agreement.".
4. Section 4.03(a) of the Liquidity Agreement is hereby
amended deleting the words "Section 4.01(c)" in line 13 thereof and
substituting in place therefor the words "Section 4.01(b)."
5. Section 4.10(b) of the Liquidity Agreement is hereby
amended and restated in its entirety to read as follows:
"SECTION 4.01 Subordination. The Liquidity Agent and the
Liquidity Lenders agree that the obligations of the Company set forth
in Sections 4.07, 4.08, 4.09 and 11.04 hereof shall be subordinate to
the obligation of the Company to make payments of (i) principal of and
interest on the Loans and the Commercial Paper and (ii) principal of,
and interest (up to the Class A Note Rate and Class B Note Rate
respectively) on, the Non-Affiliated Subordinated Notes, and shall
constitute claims against the Company only to the extent (if any) that
the assets of the Company are sufficient for the payment thereof."
6. This First Amendment is limited as specified and
shall not constitute a modification, acceptance or waiver of any other
provision of the Liquidity Agreement.
7. This First Amendment shall become effective (the
"Amendment Effective Date") on the date on which the Company, the Liquidity
Lenders and the Liquidity Agent shall have each executed and delivered to the
other a counterpart of this First Amendment.
8. From and after the Amendment Effective Date, all
references to the Liquidity Agreement in the Liquidity Agreement and each of
the other Facility Documents shall be deemed to be references to the Liquidity
Agreement as amended hereby.
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9. This First Amendment may be executed on separate
counterparts by the parties hereto, each of which when so executed and
delivered shall be an original, but all of which shall constitute one and the
same instrument.
10. This First Amendment and the rights and obligations
hereunder shall be construed in accordance with and governed by the laws of the
State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this First Amendment to be duly executed and delivered as of the
date first above written.
BLUE HAWK FUNDING CORPORATION
By__________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Liquidity Agent
By__________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Liquidity
Lender
By__________________________________
Name:
Title:
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