EXHIBIT 10.3B
Dated as of May 15, 1997
Great Lakes Credit Corp.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Co.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Re: Second Amendment of Liquidity Agreement
dated as of July 22, 1994 (this "Amendment")
Ladies and Gentlemen:
Reference is hereby made to that certain Liquidity Agreement, dated as
of July 22, 1994 (as amended, supplemented and otherwise modified through the
date hereof, the "Liquidity Agreement"), among Great Lakes Credit Corp., a
Delaware corporation (the "Borrower"), and ABN AMRO Bank N.V., as agent (the
"Agent") for and on behalf of the Lenders. You have requested that the Agent
agree to amend the Liquidity Agreement which the Agent is willing to do subject
to the terms and conditions hereof. Terms used herein and not otherwise defined
herein which are defined in the Liquidity Agreement shall have the same meaning
herein as defined therein.
1. Accordingly, subject to the following terms and conditions, the
Liquidity Agreement shall be, and it hereby is, effective as of the date hereof
(the "Effective Date") subject to Section 3 of this Amendment, amended as
follows:
(a) The first sentence of Section 3.01 of the Liquidity
Agreement shall be, and hereby is, amended by replacing the term
"Termination Date" with the phrase "applicable Lender's Termination
Date (or, with respect to any B-Holder, prior to such B-Holder's
Commitment Termination Date)" therein and by replacing the term "Banks"
with the phrase "Lenders (other than WINDMILL)" in clause (ii) thereof.
(b) The B-Holders shall be considered to be "Lenders" for
purposes of Section 3.02 of the Liquidity Agreement.
(c) Section 3.02(a) of the Liquidity Agreement shall be, and
hereby is, amended by deleting the sentence "No Incremental Payment
shall be made by any Lender on or after such Lender's Termination
Date." and replacing it with the following:
If an Incremental Payment is so requested of any
B-Holder then each B-Holder shall make to the Borrower its pro
rata share (based on its Original Investment as a percentage
of the aggregate Original Investments of all B-Holders) of
such Incremental Payment, subject to the terms hereof and of
the Transfer Agreement; provided, however, that the Investment
of any B-Holder after giving effect to such Incremental
Payment shall not exceed such B-Holder's Original Investment.
No Incremental Payment shall be made by any Lender after such
Lender's Termination Date (or, with respect to any B-Holder,
after such B-Holder's Commitment Termination Date).
(d) The fourth and last sentence of Section 3.02(a) of the
Liquidity Agreement shall be, and hereby is, amended by replacing the
term "Banks" with the phrase "Lenders (other than WINDMILL)" therein
and by replacing each term "Bank" with the term "Lender" therein.
(e) Section 3.06(b)(ii) of the Liquidity Agreement shall be,
and hereby is, amended and restated in its entirety to be and to read
as follows:
(ii) during the period from the B-Certificate
Initiation Date to the Commitment Termination Date, monthly in
arrears on the Payment Date for each calendar month for the
immediately prior Settlement Period, commencing on the first
Payment Date following the B-Certificate Initiation Date, and
on the Commitment Termination Date, a fee (which shall not be
less than zero Dollars ($0)) equal to the B-Certificate
Commitment Rate on an amount equal to the sum of the Original
Investment for each B-Holder minus the sum of the Investment
for each B-Holder arising under the B-Certificate, calculated
on the basis of actual number of days elapsed and a three
hundred sixty (360) day year;
(f) The phrase "thirty basis points (0.30%)" in Section
3.06(b)(iii) of the Liquidity Agreement shall be, and hereby is,
amended in its entirety to be and to read as follows:
twenty-five basis points (0.25%)
(g) The third sentence of Section 6.02 of the Liquidity
Agreement shall be, and hereby is, amended by replacing the term "Bank"
with the phrase "Lender (other than WINDMILL)" therein.
(h) Section 6.02(f) of the Liquidity Agreement shall be, and
hereby is, amended by adding, immediately prior to the period at the
end thereof, the following parenthetical:
(as determined after giving effect to an increase in
the Additional Advance Rate as a result of such Incremental Payment)
(i) Section 9.11 of the Liquidity Agreement shall be, and
hereby is, amended by replacing the term "CPS" with the term "NBGL"
therein.
(j) Clause (i) in Section 10.04(b) of the Liquidity Agreement
shall be, and hereby is, amended by replacing the phrase "either ▇▇▇▇▇▇
or CPS" with the term "any Seller" therein.
(k) The first sentence of the last paragraph of Section
10.05(c) of the Liquidity Agreement shall be, and hereby is, amended by
replacing the term "Interest" with the phrase "commitment to make Loans
hereunder or all or any part of its Interest" therein.
(l) The second to last sentence of the last paragraph of
Section 10.05(c) of the Liquidity Agreement shall be, and hereby is,
amended by replacing the term "Original Investment" with the terms
""B-Certificate Initiation Date", "Commitment Termination Date","
therein.
(m) Clause (iv) of the definition of "Bank Termination Date"
in Schedule X of the Liquidity Agreement shall be, and hereby is,
amended in its entirety to be and to read as follows:
(iv) June 30, 2000
(n) The definition of "▇▇▇▇▇▇'▇ Consolidated Net Worth" in
Schedule X of the Liquidity Agreement shall be, and hereby is, amended
in its entirety to be and to read as follows:
"▇▇▇▇▇▇'▇ Consolidated Net Worth" shall mean, at any
date, the amount by which (a) the total consolidated assets
(minus all assets which would be classified as intangible
assets) of ▇▇▇▇▇▇ and its Subsidiaries exceed (b) the total
consolidated liabilities of ▇▇▇▇▇▇ and its Subsidiaries, all
computed and calculated in accordance with GAAP.
(o) Clause (ii) of the definition of "Eurodollar Rate" in
Schedule X of the Liquidity Agreement shall be, and hereby is, amended
in its entirety to be and to read as follows:
(ii) one-half percent (0.50%)
(p) The definition of "Minimum Amount" in Schedule X of the
Liquidity Agreement shall be, and hereby is, amended in its entirety to
be and to read as follows:
"Minimum Amount" shall mean, $250,000,000 plus 75% of
positive Net Income of ▇▇▇▇▇▇ and its Subsidiaries for each
Fiscal Year of ▇▇▇▇▇▇ commencing on or after February 4, 1996
(but without subtraction for any negative Net Income for any
such period).
(q) Clause (f) of the definition of "Permitted Investments" in
Schedule X of the Liquidity Agreement shall be, and hereby is, amended
by replacing the phrase "substantially all the assets of which are
comprised of securities of the type described in clauses (a) through
(e) above" as follows:
which money market funds have assets in excess of One Billion
Dollars ($1,000,000,000) and comply with Rule 2a-7 of the
Securities and Exchange Commission as in effect on the date
hereof
(r) The following definitions shall be, and hereby are, added
to Schedule X of the Liquidity Agreement as alphabetically appropriate:
"B-Certificate Commitment Rate" shall have the
meaning ascribed to such term in the B-Certificate.
"B-Certificate Initiation Date" shall have the
meaning ascribed to such term in the B-Certificate.
"Commitment Termination Date" shall have the meaning
ascribed to such term in the B-Certificate.
"NBGL" shall mean National Bank of the Great Lakes.
"Net Income" shall mean, for any Person and for any
period, the net income (loss) of such Person for such period,
provided that (i) all gains and all losses realized by such
Person and its Subsidiaries upon the sale or other disposition
(including, without limitation, pursuant to sale and leaseback
transactions) of property or assets which are not sold or
otherwise disposed of in the ordinary course of business, or
pursuant to the sale of any capital stock of such Person or
any subsidiary, shall be excluded, (ii) net income or net loss
of any Person combined with such Person on a "pooling of
interests" basis attributable to any period prior to the date
of such combination shall be excluded, and (iii) net income of
any Person which is not a Subsidiary of such Person and which
is consolidated with such Person or is accounted for by such
Person by the equity method of accounting shall be included
only to the extent of the amount of dividends or distributions
paid to such Person or a Subsidiary.
"Original Investment" shall have the meaning
ascribed to such term in the B-Certificate.
2. The Borrower represents and warrants to the Agent that:
(a) it is in full compliance with all of the material terms,
conditions and all other provisions of this Amendment, the Liquidity
Agreement and each of the other Transaction Documents, in each case as
of the Effective Date; and
(b) its representations and warranties contained in this
Amendment, the Liquidity Agreement and the other Transaction Documents
are true and correct in all material respects, in each case as though
made on and as of the Effective Date, except to the extent such
representations and warranties relate solely to an earlier date (and
then as of such earlier date); and
(c) both before and after giving effect to this Amendment, no
Termination Event nor Potential Termination Event has occurred and is
continuing or would result from the execution and delivery of this
Amendment or any other document arising in connection with or pursuant
to this Amendment; and
(d) this Amendment has been duly authorized, executed and
delivered on its behalf, and each of (i) the Liquidity Agreement, both
before being amended and supplemented hereby and as amended and
supplemented hereby, (ii) each of the other Transaction Documents to
which it is a party and, (iii) this Amendment, constitutes its legal,
valid and binding obligation enforceable against it in accordance with
the terms hereof or thereof.
3. Section 1 of this Amendment shall become effective only once all of
the pre-conditions set forth below in this Section 3 have been satisfied:
(a) the second amendment of the Purchase Agreement, the
Transfer Supplement, the Seasonal Commitment Certificate and the
Guaranty, each dated as of the date hereof, shall be effective; and
(b) the Agent has received, in form and substance satisfactory
to the Agent, all documents, certificates and opinions as the Agent may
reasonably request and all other matters incident to the execution
hereof are satisfactory to the Agent.
4. Notwithstanding Section 2.2 of the Transfer Agreement, the Lenders
and each of the parties hereto consent to the distribution on the date hereof to
the B-Holder of an amount equal to all Investment and Discount owed to the
B-Holder.
5. The Liquidity Agreement, as amended and supplemented hereby or as
contemplated herein, and all rights and powers created thereby and thereunder or
under the other Transaction Documents, and all other documents executed in
connection therewith, are in all respects ratified and confirmed. From and after
the Effective Date, the Liquidity Agreement shall be deemed to be amended and
supplemented as herein provided, and, except as so amended and supplemented, the
Liquidity Agreement, each of the other Transaction Documents and all other
documents executed in connection therewith shall remain in full force and
effect.
6. This Amendment may be executed in two or more counterparts, each of
which shall constitute an original but both or all of which, when taken
together, shall constitute but one instrument.
Please signify your agreement and acceptance of the foregoing by executing this
Amendment in the space provided below.
Very truly yours,
ABN AMRO BANK N.V., as Agent
By \s\ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title Group Vice President
By \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title Group Vice President and Director
Accepted and Agreed to:
GREAT LAKES CREDIT CORP., as Borrower
By \s\ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title Vice President
Consented to:
LASALLE NATIONAL BANK, as Collateral Agent
By \s\ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title First Vice President