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EXHIBIT 10.3
AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated
as of June 6, 1997 among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ FUNDING CORPORATION, (formerly known as
▇▇▇▇▇▇▇▇ Funding Corporation, "Funding"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INTERNATIONAL, INC.
(formerly known as ▇▇▇▇▇▇▇▇ International, Inc., "Parent"), the financial
institutions listed on the signature pages hereof, as Buyers, and ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent and Structuring and
Collateral Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into an Amended
and Restated Receivables Purchase Agreement (as heretofore amended, the
"Agreement") dated as of August 15, 1994, and
WHEREAS, the parties hereto desire to amend the Agreement as set forth
herein and to restate the Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall from and after the date hereof refer
to the Agreement as amended and restated hereby.
SECTION 2. Amendments to Definitions. Section 1.01 of the Agreement
is amended as follows:
(a) The definition of "A-Rated Obligor" is amended and restated to
read in its entirety as follows:
"A-Rated Obligor" means, during any Report Month, an Obligor:
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(i) whose outstanding senior unsecured short-term debt
securities were rated A-1 or higher by S&P as of the end of the
immediately preceding Report Month; or
(ii) who did not have a senior unsecured short-term debt
rating by S&P as of the end of the immediately preceding Report Month,
but had a senior unsecured long-term debt rating of A+ or higher by
S&P as of the end of the immediately preceding Report Month.
(b) The definition of "Adjusted Reserve Percentage" is amended by
replacing "23%" in each place where it appears with "19%".
(c) The definition of "Collateral Agent" is amended by replacing
"▇.▇. ▇▇▇▇▇▇ Delaware" with "▇▇▇▇▇▇ Guaranty Trust Company of New York".
(d) The definition of "Commitment Fee" is amended by replacing
".1875%" with ".125%".
(e) The definition of "Concentration Limit" is amended and restated
to read in its entirety as follows:
"Concentration Limit" means (i) for each A-Rated Obligor and such
Obligor's Affiliates considered as a whole, 15%, (ii) for each B-Rated Obligor
and such Obligor's Affiliates (which are not A-Rated Obligors) considered as a
whole, 7.5%, (iii) for each C-Rated Obligor and such Obligor's Affiliates
(which are not A-Rated or B-Rated Obligors) considered as a whole, 5% and (iv)
for each other Obligor and such Obligor's Affiliates (which are not A-Rated,
B-Rated or C-Rated Obligors) considered as a whole, 3%.
(f) The definitions of "Dilution Horizon" and "Dilution Ratio" are
amended by replacing "Dilution Adjustment" in each place where it appears with
"Variable Dilution Adjustment".
(g) The definition of "Eurodollar Rate" is amended by replacing
".50%" with ".375%" and "2.50% with "2.375%" in clause (ii)(C) of such
definition.
(h) The definition of "Expiration Date" is amended by replacing
"August 29, 2000" with the date "August 29, 2002".
(i) The definition of "Fixed CD Rate" is amended by replacing ".625%"
with ".50%" and "2.625%" with "2.50%" in clause (ii)(C) of such definition.
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(j) The definition of "Net Pool Balance" is amended and restated to
read in its entirety as follows:
"Net Pool Balance" means, at any time, the Outstanding Balance of the
Eligible Receivables at such time, reduced by the Contractual Dilution Reserve
at such time, less the aggregate amount by which the Outstanding Balance of
Eligible Receivables of each Obligor and its Affiliates considered as a whole
at such time, as so reduced, exceeds (x) the aggregate Outstanding Balance of
all Eligible Receivables at such time, as so reduced, multiplied by (y) the
Concentration Limit for such Obligor and its Affiliates.
(k) The following definitions are added:
"Additional Qualified Dilution Adjustment" means any Dilution
Adjustment that is attributable to a customer incentive program of Parent (i)
which is reported and calculated with a comparable level of accuracy to the
Roofing Dilution Adjustment, (ii) that is approved by the Agent and would not
result in a reduction or withdrawal of the current rating by S&P, (iii) for
which prior notice of inclusion in the Contractual Dilution Reserve calculation
has been provided to the Purchase Parties and (iv) which will be calculated and
set forth under section "E" of the "Net Pool Balance" calculation in both
Exhibits D and E as such exhibits are amended to reflect such calculations.
"B-Rated Obligor" means, during any Report Month, an Obligor (which is
not an A-Rated Obligor):
(i) whose outstanding senior unsecured short-term debt
securities were rated A-2 by S&P as of the end of the immediately
preceding Report Month, or
(ii) who did not have a senior unsecured short-term rating by
S&P as of the end of the immediately preceding Report Month, but had a
senior unsecured long-term debt rating of BBB+ or higher by S&P as of
the end of the immediately preceding Report Month.
"Building Insulation Dilution Adjustment" means the Dilution
Adjustments attributable to quarterly and annual rebate programs for Parent's
building insulation business as calculated and set forth under section "E" of
the "Net Pool Balance" calculation in both Exhibits D and E; provided that the
Building Insulation Dilution Adjustment shall not be part of the Contractual
Dilution Reserve until ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Funding Corporation and the Servicer
represent, to the satisfaction of S&P and the Agent, that the reported
calculations contained in the Building Insulation Dilution Adjustment meet the
standards of accuracy in all
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material respects consistent with the other calculations provided in the Daily
and Monthly Reports.
"C-Rated Obligor" means, during any Report Month, an Obligor (which
is not an A-Rated or B-Rated Obligor):
(i) whose outstanding senior unsecured short-term debt
securities were rated A-3 by S&P as of the end of the immediately
preceding Report Month, or
(ii) who did not have a senior unsecured short-term debt
rating by S&P as of the end of the immediately preceding Report Month,
but had a senior unsecured long-term debt rating of BBB- or higher by
S&P as of the end of the immediately preceding Report Month.
"Contractual Dilution Reserve" means (i) Dilution Adjustments
attributable to cash discounts set forth under section "E" of the "Net Pool
Balance" calculation in Exhibits D and E, (ii) the Roofing Dilution Adjustment,
(iii) the Building Insulation Dilution Adjustment and (iv) any Additional
Qualified Dilution Adjustment; provided that the Roofing Dilution Adjustment
and Building Insulation Dilution Adjustment shall not be part of Contractual
Dilution Reserve until ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Funding Corporation and the Servicer
represent, to the satisfaction of S&P and the Agent, that the reported
calculations contained in the Roofing Dilution Adjustment and Building
Insulation Dilution Adjustment meet the standards of accuracy in all material
respects consistent with the other calculations provided in the Daily and
Monthly Reports.
"Roofing Dilution Adjustment" means the Dilution Adjustments
attributable to quarterly and annual rebate programs for Parent's roofing
business as calculated and set forth under section "E" of the "Net Pool
Balance" calculation in both Exhibits D and E; provided that the Roofing
Dilution Adjustment shall not be part of the Contractual Dilution Reserve until
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Funding Corporation and the Servicer represent, to the
satisfaction of S&P and the Agent, that the reported calculations contained in
the Roofing Dilution Adjustment meet the standards of accuracy in all material
respects consistent with the other calculations provided in the Daily and
Monthly Reports.
"Variable Dilution Adjustments" means Dilution Adjustments which are
not part of Contractual Dilution Reserve.
(l) The definitions of SFC, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Group are changed to
be definitions of "Funding", "Parent" and "▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group", respectively,
and
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references in the Program Documents to SFC, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Group are
deemed to be references to Funding, Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group.
SECTION 2. Amendment of Section 2.14. Section 2.14 is amended
by extending each of the dates contained therein by two years.
SECTION 3. Amendment of Section 4.03. Section 4.03(i) is
amended by replacing "June 30, 1994" in each place where it appears with "March
31, 1997."
SECTION 4. Addition of Notice of Change in Rebate Programs.
Section 5.01 of the Agreement is amended to include the following:
(s) Notice of Change in Rebate Programs. Funding shall give
the Purchase Parties and S&P prior notice of any material changes to
its rebate or other programs or policies that constitute Dilution
Adjustments.
SECTION 5. Replacement of Exhibits D and E. Exhibits D and E
are deleted and replaced with Exhibits D and E to this Amendment.
SECTION 6. Changes in Commitments. With effect from and
including the date this Amendment and Restatement becomes effective in
accordance with Section 9, (i) the Person listed on the signature pages hereof
which is not a party to the Agreement (the "New Buyer") shall become a Buyer
party to the Agreement and (ii) the Commitment of each Buyer shall be the
amount set forth opposite the name of such Buyer on the signature pages hereof.
Any Buyer whose Commitment is changed to zero shall upon such effectiveness
cease to be a Buyer party to the Agreement, and all accrued fees and other
amounts (other than such Buyer's interest in the Aggregate Net Investment)
payable under the Agreement for the account of such Buyer shall be due and
payable on such date; provided that the provisions of Sections 8.02 and 8.03 of
the Agreement shall continue to inure to the benefit of each such Buyer. If
any Tranches are outstanding on such date and, as a result of changes in the
Commitments of the Banks, the interests in such Tranches are not held by the
continuing Banks ratably in proportion to their Commitments, the Banks shall,
as appropriate, buy and sell the interests in such Tranches such that, after
giving effect to such purchases, the interests in such Tranches are held
ratably, and Section 2.13 of the Agreement shall apply to any such purchases.
SECTION 7. Representations and Warranties. Funding hereby
represents and warrants that as of the date hereof and after giving effect
thereto:
(a) no Termination Event or Potential Termination Event has occurred
and is continuing; and
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(b) each representation and warranty of Funding set forth in the
Agreement after giving effect to this Amendment and Restatement is true and
correct as though made on and as of such date.
SECTION 8. Governing Law. This Amendment and Restatement shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 9. Counterparts; Effectiveness. This Amendment and
Restatement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Amendment and Restatement shall become
effective on the date that each of the following conditions shall have been
satisfied:
(i) receipt by the Administrative Agent of duly executed
counterparts hereof signed by each of the parties hereto (or, in the
case of any party as to which an executed counterpart shall not have
been received, the Administrative Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party);
(ii) the Administrative Agent shall have received new
Buyers' Certificates for the Buyers;
(iii) S&P shall have rated the Buyer's Certificates AAA and
Funding shall have paid any fees and expenses of S&P in connection
with the rating of the Buyers' Certificates;
(iv) an amendment to the Purchase and Sale Agreement in
the form of Annex I hereto shall have been executed;
(v) the filings and other actions necessary in connection
with the change of name of the Parent and Funding, as listed in Annex
II, shall have been made or taken;
(vi) receipt by the Administrative Agent of all documents
it may reasonably request relating to the existence of Funding and
Parent, the corporate authority for and the validity of the Agreement
as amended and restated hereby, and any other matters relevant hereto,
all in form and substance satisfactory to the Administrative Agent;
and
(vii) receipt by the Administrative Agent of an opinion of
the General Counsel of Parent substantially to the effect that the
conditions in paragraphs (v) & (vi) of this section have been
satisfied;
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provided that this Amendment and Restatement shall not become effective or
binding on any party hereto unless all of the foregoing conditions are
satisfied not later than June 30, 1997. The Administrative Agent shall
promptly notify the parties hereto of the effectiveness of this Amendment and
Restatement, and such notice shall be conclusive and binding on all parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FUNDING CORPORATION
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
INTERNATIONAL, INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Treasurer
▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK,
as Administrative Agent and
Structuring and Collateral Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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BUYERS:
Commitment: $20,000,000 ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
Commitment: $20,000,000 MELLON BANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
Commitment: $20,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: as Attorney-in-Fact
Commitment: $20,000,000 THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Title: Vice President
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Commitment: $10,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President
Commitment: $0 NATIONSBANK, N.A. (formerly known as
NATIONSBANK, N.A., (CAROLINAS))
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President
Commitment: $10,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ ILLEGIBLE
-------------------------------
Title: FVP
TOTAL
COMMITMENTS: $100,000,000
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Annex I
AMENDMENT TO PURCHASE AND SALE AGREEMENT
AMENDMENT dated as of June 6, 1997 to the Purchase and Sale Agreement
dated as of August 15, 1994 (the "Agreement") between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
INTERNATIONAL, INC. (formerly known as ▇▇▇▇▇▇▇▇ International, Inc.) and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ FUNDING CORPORATION (formerly known as ▇▇▇▇▇▇▇▇ Funding Corporation).
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement has the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall, after this Amendment becomes effective, refer to the Agreement
as amended hereby.
SECTION 2. Amendment of Sections 4.01 and 4.02 of the Agreement.
Sections 4.01(g) and 4.02(h) of the Agreement are amended by replacing "June
30, 1994" in each place where it appears with "March 31, 1997".
SECTION 3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 4. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signature thereto and hereon were upon the same instrument.
SECTION 5. Effectiveness. This Amendment shall become effective as
of the date hereof on the date when it has been executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ FUNDING CORPORATION
By:
------------------------------------
Name:
Title:
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Annex II
[Actions to be taken in connection with name change]
1. UCC-1s - amend existing UCC-1s for debtor name change
2. Accounts - directions to change names on Lockbox Accounts and Collection
Account from SFC to Funding
3. Authority - to provide corporate documents authorizing and evidencing name
change