Exhibit 4(ix)
EXECUTION VERSION
FIFTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
THIS FIFTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this "Amendment")
dated as of August 2, 2004 is entered into among AGC FUNDING CORPORATION (the
"Seller"), AMERICAN GREETINGS CORPORATION (in its individual capacity,
"Greetings"), in its capacity as Servicer (in such capacity, together with its
successors and permitted assigns in such capacity, the "Servicer"), PNC BANK,
NATIONAL ASSOCIATION (in its individual capacity, "PNC"), as purchaser agent for
Market Street Funding Corporation, PNC, as Administrator for each Purchaser
Group (in such capacity, the "Administrator"), MARKET STREET FUNDING CORPORATION
(in its individual capacity, "Market Street"), as a Conduit Purchaser and as a
Related Committed Purchaser, FIFTH THIRD BANK (in its individual capacity,
"Fifth Third"), as a Conduit Purchaser, as a Related Committed Purchaser and as
purchaser agent for itself, LIBERTY STREET FUNDING CORP. ("LSFC"), as a Conduit
Purchaser and THE BANK OF NOVA SCOTIA ("BNS"), as a Related Committed Purchaser
and as purchaser agent for itself and LSFC.
RECITALS
1. The Seller, the Servicer, the Administrator, PNC, Market Street, Fifth
Third, LSFC and BNS are parties to the Receivables Purchase Agreement dated as
of August 7, 2001 (as amended, restated, supplemented or otherwise modified from
time to time, the "Agreement"); and
2. The parties hereto desire to amend the Agreement as set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein without
definition and that are defined in Exhibit I to the Agreement shall have the
same meanings herein as therein defined.
2. Amendments to Agreement.
2.1 The definition of "Facility Termination Date" contained in
Exhibit I to the Agreement is hereby amended and restated in its entirety
to read as follows:
""Facility Termination Date" means the earliest to occur of: (a)
with respect to (i) each Purchaser other than the Purchasers in any
Purchaser Group for which Fifth Third Bank is the Purchaser Agent, August
1, 2007 and (ii) with respect to each Purchaser in any Purchaser Group for
which Fifth Third Bank is the Purchaser Agent, August 1, 2005, in each
case subject to any extension pursuant to Section 1.10 of the Agreement
(it being understood that if any such Purchaser does not extend its
Commitment hereunder then the Purchase Limit shall be reduced by an amount
equal to the Commitment of such Exiting
Purchaser and the Commitment Percentages of the Purchasers within each
remaining Purchaser Group shall be appropriately adjusted), (b) the date
determined pursuant to Section 2.2 of the Agreement, (c) the date the
Purchase Limit reduces to zero pursuant to Section 1.1(b) of the
Agreement, (d) with respect to each Purchaser Group, the date that the
commitments of all of the Liquidity Providers terminate under the related
Liquidity Agreements or the date one or more of such Purchaser Group's
Program Support Agreements terminate and (e) with respect to each
Purchaser Group, the date that the commitment, of all of the Related
Committed Purchasers of such Purchaser Group terminate pursuant to Section
1.10."
2.2 Section 2(e) of Exhibit III to the Agreement is hereby amended
by replacing each occurrence of the date "February 28, 2001" therein with
the date "February 29, 2004".
2.3 Clause (g) of Exhibit V to the Agreement is hereby amended and
restated in its entirety to read as follows:
"(g) (i) (A) the Everyday Default Ratio shall exceed 5.0%, (B)
the Disputed Default Ratio shall exceed 3.0%, (C) the Seasonal Default
Ratio shall exceed 3.0%, (D) the Delinquency Ratio shall exceed 38% or
(ii) the average for three consecutive calendar months of (A) the Everyday
Default Ratio shall exceed 4.0%, (B) the Disputed Default Ratio shall
exceed 2.5%, (C) the Seasonal Default Ratio shall exceed 2.5%, (D) the
Delinquency Ratio shall exceed 34%, or (E) the Dilution Ratio shall exceed
7%; or (iii) Days Sales Outstanding shall exceed 100."
2.4 Clause (j)(i) of Exhibit V to the Agreement is hereby amended by
replacing the amount "$10,000,000" therein with the amount "$20,000,000".
2.5 Schedule II to the Agreement is hereby amended and restated in
its entirety by Schedule II to this Amendment.
3. Agreements in respect of Allocations. Each Related Committed Purchaser
party hereto, by executing and delivering a counterpart to this Amendment,
hereby acknowledges and agrees that its respective "Commitment" is as set forth
beneath such Person's signature to this Amendment.
4. Representations and Warranties. The Seller hereby represents and
warrants to each Purchaser and the Administrator as follows:
(a) Representations and Warranties. The representations and
warranties contained in Exhibit III of the Agreement are true and correct
in all material respects as of the date hereof (except to the extent that
such representations and warranties relate expressly to an earlier date,
and in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date).
(b) No Default. Both before and immediately after giving effect
to this Amendment and the transactions contemplated hereby, no Termination
Event or Unmatured Termination Event exists or shall exist.
5. Effect of Amendment. All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect.
After this Amendment becomes effective, all references in the Agreement (or in
any other Transaction Document) to "this Agreement", "hereof", "herein" or words
of similar effect referring to the Agreement shall be deemed to be references to
the Agreement as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision of
the Agreement other than as set forth herein.
6. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by (i) the Administrator of counterparts of this Amendment
(whether by facsimile or otherwise) executed by each of the other parties
hereto, in form and substance satisfactory to the Administrator in its sole
discretion and (ii) each Purchaser Agent, for itself and the related Conduit
Purchaser, of counterparts of an amendment and restatement of the Purchaser
Group Fee Letter, executed by each of the parties thereto and dated the date
hereof, and evidence of the performance by each of the parties thereto of its
respective obligations, if any, thereunder required to be performed on or prior
to the date hereof, including without limitation, payment of the "renewal fee"
referred to therein, in each case, in form and substance satisfactory to such
Purchaser Agent.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York (without regard to
any otherwise applicable principles of conflicts of law).
9. Section Headings. The various headings of this Amendment are included
for convenience only and shall not affect the meaning or interpretation of this
Amendment, the Agreement or any provision hereof or thereof.
(continued on following page)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
AGC FUNDING CORPORATION
By: /s/ Stephen J. Smith
--------------------------------
Name: Stephen J. Smith
Title: Vice President and Treasurer
AMERICAN GREETINGS CORPORATION, as
Servicer
By: /s/ Stephen J. Smith
--------------------------------
Name: Stephen J. Smith
Title: Vice President, Treasurer and
Investor Relations
S-1 Fifth Amendment to Receivables
Purchase Agreement
PNC BANK, NATIONAL ASSOCIATION,
as Administrator and as Purchaser Agent
for Market Street Funding Corporation
By: /s/ John T. Smathers
-----------------------------------
Name: John T. Smathers
Title: Vice President
MARKET STREET FUNDING CORPORATION,
as a Conduit Purchaser and as a Related
Committed Purchaser
By: /s/ EVELYN ECHEVARRIA
-----------------------------------
Name: EVELYN ECHEVARRIA
Title: VICE PRESIDENT
Commitment: $80,000,000
S-2 Fifth Amendment to Receivables
Purchase Agreement
FIFTH THIRD BANK,
as Purchaser Agent for the Fifth Third
Purchaser Group, as a Conduit
Purchaser and as a Related Committed
Purchaser
By: /s/ BRIAN J. GARDNER
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Name: BRIAN J. GARDNER
Title: AVP
Commitment: $40,000,000
S-3 Fifth Amendment to Receivables
Purchase Agreement
THE BANK OF NOVA SCOTIA,
as a Related Committed Purchaser and
as Purchaser Agent for itself and
Liberty Street Funding Corp.
By: /s/ NORMAN LAST
----------------------------------
Name: NORMAN LAST
Title: MANAGING DIRECTOR
Commitment: $80,000,000
LIBERTY STREET FUNDING CORP.,
as a Conduit Purchaser
By: /s/ Andrew L. Stidd
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Name: Andrew L. Stidd
Title: President
S-4 Fifth Amendment to Receivables
Purchase Agreement
SCHEDULE II TO AMENDMENT
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box Account
Sch-1