AMENDMENT NO. 1
TO
TRANSFER AND ADMINISTRATION AGREEMENT
dated as of April 23, 1999
AMENDMENT NO. 1 TO TRANSFER AND ADMINISTRATION AGREEMENT ("Amendment"),
dated as of September 3, 1998, among ▇▇▇▇ FUNDING COMPANY (the "Transferor"),
▇▇▇▇ INDUSTRIES, INC., individually ("▇▇▇▇"), and as "Collection Agent",
ENTERPRISE FUNDING CORPORATION (the "Company"), THE FINANCIAL INSTITUTIONS FROM
TIME TO TIME PARTY TO THE "TAA" DESCRIBED BELOW (the "Bank Investors") and
NATIONSBANK, N.A., as agent for the Company and the Bank Investors (the
"Agent").
WHEREAS, the Transferor, ▇▇▇▇, the Collection Agent, the Company, the
Bank Investors and the Agent are parties to a Transfer and Administration
Agreement dated as of September 3, 1998 (the "TAA");
WHEREAS, the Transferor, ▇▇▇▇, the Collection Agent, the Company, the
Bank Investors and the Agent desire to amend the TAA in certain respects;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Amendments to the TAA. Upon the satisfaction of the condition
precedent set forth in Section 2 below, the TAA is amended, effective as of the
date first above written, as follows:
1.1. The definition of "Facility Limit" in Section 1.1 is hereby amended
and restated as follows:
"Facility Limit" means $300,000,000; provided that such amount may not at
any time exceed the aggregate Commitments at any time in effect;
provided, further, that such amount shall equal $290,000,000 if the
Transferor and ▇▇▇▇ shall not have delivered to the Agent executed
Lock-Box Agreements within 15 Business Days of the date hereof related to
Queen Carpet Corporation's (a division of ▇▇▇▇) lock-boxes and
corresponding accounts maintained in Canada which receive payments due
under Receivables.
1.2. The definition of "Loss and Dilution Reserve" is hereby amended and
restated as follows:
"Loss and Dilution Reserve" means on any day the greater of (x) ten
percent (10%) of the Outstanding Balance of Eligible Receivables and (y)
the result of:
NI
-------- - NI
1-RRR
Where:
NI = Net Investment
RRR = Required Reserve Ratio
1.3. Schedule 2 to the TAA is hereby amended to delete from the Minimum
Net Worth covenant contained therein the phrase "and (3) the ability of the
Seller and its Subsidiaries to purchase, redeem, retire, or otherwise acquire
shares or other equity instruments shall continue to be subject to Section 10.5
of the Credit Agreement."
1.4. The signature page to the TAA is hereby amended and restated as set
forth on Exhibit A as attached hereto.
SECTION 2. Consent to Inclusion of Queen Carpet Corporation Receivables.
2.1 Pursuant to the requirements set forth in the definition of "Excluded
Receivables" in Section 1.1 of the TAA, each of the Seller, the Transferor, the
Agent, and the Majority Bank Investors, by its execution hereof, consents to the
inclusion of the Receivables originated by Queen Carpet Corporation, a division
of the Seller, as Eligible Receivables.
SECTION 3. Conditions Precedent.
3.1 This Amendment shall become effective and be deemed effective as of
the date first above written when the Agent shall have received six (6) copies
of (i) the Amended and Restated Fee Letter dated as of the date hereof duly
executed by the Transferor, ▇▇▇▇, the Agent and the Company and (ii) this
Amendment duly executed by the Transferor, ▇▇▇▇, the Collection Agent, the
Company, the Bank Investors and the Agent.
SECTION 4. Representations and Warranties.
4.1 Each of the parties hereto represents that this Amendment has been
duly authorized, executed and delivered by it pursuant to its corporate powers
and constitutes the legal, valid and binding obligation of such party.
SECTION 5. Confirmation of TAA. Except as herein expressly amended, the
TAA is ratified and confirmed in all respects and shall remain in full force and
effect in accordance with its terms. Each reference in the TAA to "this
Agreement" shall mean the TAA as amended by this Amendment, and as hereinafter
amended or restated.
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SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).
SECTION 7. 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 to be an original
and all of which when taken together shall constitute one and the same
Amendment. 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.
SECTION 8. Majority Bank Investors. The Agent represents that
NationsBank, N.A., as a Bank Investor constitutes the Majority Bank Investors
under the TAA.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
▇▇▇▇ FUNDING COMPANY
as Transferor
By________________________________
Title:
▇▇▇▇ INDUSTRIES, INC.
individually and as Collection Agent
By________________________________
Title:
ENTERPRISE FUNDING CORPORATION
as the Company
By_________________________________
Title:
NATIONSBANK, N.A.
as Agent and as a Bank Investor
By__________________________
Title:
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Exhibit A
TAA Signature Page
(attached)
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Transfer and Administration Agreement as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By:__________________________________
Name:
Title:
▇▇▇▇ FUNDING COMPANY,
as Transferor
By:__________________________________
Name:
Title:
▇▇▇▇ INDUSTRIES, INC., individually
and as Collection Agent
By:__________________________________
Name:
Title:
Commitment NATIONSBANK, N.A., as Agent
$300,000,000 and a Bank Investor
By:__________________________________
Name:
Title:
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Signature page to Transfer and Administration
Agreement
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