EXHIBIT 10.23
EXECUTION COPY
OMNIBUS AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ TO AMENDED AND RESTATED
SERIES 1996-1 SUPPLEMENT TO POOLING AND SERVICING AGREEMENT
AND
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CERTIFICATE PURCHASE AGREEMENT
(SERIES 1996-1)
AND
AMENDMENT NO. 1 TO AMENDED AND RESTATED
CERTIFICATE PURCHASE AGREEMENT
[FALCON]
AND
AMENDMENT NO. 1 TO THE TRANSFER SUPPLEMENTS
This OMNIBUS AMENDMENT NO. 1 dated as of April 25, 2001 (the
"Amendment"), among Avondale Receivables Company, a Delaware corporation
("ARC"), Avondale ▇▇▇▇▇, Inc., an Alabama corporation ("Avondale"),
Manufacturers and Traders Trust Company, a New York banking corporation, as
trustee ("Trustee"), Bank One, N.A. (f/k/a The First National Bank of Chicago)
("Bank One"), FALCON Asset Securitization Corporation, a Delaware corporation
("FALCON"), Wachovia Bank, N.A. ("Wachovia") and The Chase Manhattan Bank
("Chase") to: (a) the Amended and Restated Series 1996-1 Supplement to Pooling
and Servicing Agreement dated as of November 21, 1997 (the "Supplement"), among
ARC, as Transferor, Avondale, as Servicer, and the Trustee; (b) the Amended and
Restated Certificate Purchase Agreement dated as of November 21, 1997 (the
"CPA"), among ARC, Avondale, Bank One, as Agent for the purchasers, FALCON, as
Purchaser, and the other Purchasers from time to time party thereto; (c) the
Amended and Restated Certificate Purchase Agreement [FALCON] dated as of
November 21, 1997 (the "Liquidity CPA"), among FALCON, each of the other Funding
Institutions from time to time set forth therein (including Wachovia and Chase)
and Bank One, individually and as Funding Agent; (d) the Transfer Supplement
dated as of November 21, 1997 (the "Wachovia Supplement"), between Bank One, as
seller and Wachovia, as assignee; and (e) the Transfer Supplement dated as
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of May 1, 1998 (the "Chase Supplement," and together with the Supplement, the
CPA, the Liquidity CPA and the Wachovia Supplement, the "Agreements"), between
Bank One, as seller and Chase, as assignee.
BACKGROUND
1. FALCON, Bank One and the other parties referred to above have
entered into the Agreements in connection with Bank One (through FALCON's
commercial paper program or otherwise) providing indirect financing for Avondale
using certain trade receivables generated and sold by Avondale to ARC as
collateral for the financing.
2. The parties hereto wish to amend the Agreements in order to,
among other things, decrease the maximum size of the facility provided by FALCON
from $120,000,000 to $100,000,000.
3. The parties hereto are willing to agree to such amendments,
all as set out in this Amendment.
AMENDMENTS
The parties hereto agree as follows:
SECTION 1. Definitions. As used herein, capitalized terms which are
defined in the preamble hereto shall have the meanings as so defined, and
capitalized terms not so defined shall have the meanings set forth in (or by
reference in) the Agreements.
SECTION 2. Amendments to Supplement. (a) Section 1.1(c) of the
Supplement is hereby amended by adding the following defined term immediately
after the definition of "Corporate Base Rate" therein:
"Credit Agreement" means the Second Amended and Restated
Credit Agreement dated as of September 28, 2000, among Avondale, the
Banks listed therein and Wachovia, as agent, as such agreement is
amended, modified, restated and/or supplemented from time to time.
(b) The second sentence of Section 2.1 of the Supplement
is hereby amended by replacing the text "$120,000,000" where it appears
therein with the text "$100,000,000".
(c) Section 6.1 of the Supplement is hereby amended by
deleting the period following clause (o) thereof, substituting "; or"
therefore and adding the following new subsection (p) thereto:
(p) (i) the occurrence of any "Event of Default"
(as defined in the Credit Agreement) under the Credit
Agreement, or (ii) if such Credit
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Agreement is terminated or is otherwise no longer in effect,
the occurrence of any event of default or similar event or
condition which results in the acceleration of the maturity of
any Indebtedness of Avondale outstanding at such time or
enables (or, with the giving of notice or lapse of time or
both, would enable) the holders of such Indebtedness or any
Person acting on such holders' behalf to accelerate the
maturity thereof, if in any of the foregoing events in clause
(ii), the amount of Indebtedness involved is in excess of
$2,000,000.
SECTION 3. Amendment to CPA. Schedule I to the CPA is hereby
amended and restated in its entirety to read as follows:
SCHEDULE I
to Certificate Purchase
Agreement Series 1996-1
AMOUNT OF EACH INITIAL PURCHASER'S CERTIFICATE
Stated Amount of Certificate
----------------------------
Purchaser
---------
FALCON Asset Securitization Corporation $100,000,000.00
Percentage
----------
FALCON Asset Securitization Corporation 100%
SECTION 4. Amendment to Liquidity CPA. Annex 1 to the Liquidity CPA
is hereby amended in its entirety to read as follows:
ANNEX 1
COMMITMENTS
Bank One, N.A. $100,000,000
SECTION 5. Amendment to Wachovia Supplement. Schedule I to the
Wachovia Supplement is hereby amended and restated in its entirety to read as
set forth on Exhibit A hereto.
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SECTION 6. Amendment to Chase Supplement. Schedule I to the Chase
Supplement is hereby amended and restated in its entirety to read as set forth
on Exhibit B hereto.
SECTION 7. Omnibus Amendment. Each of the parties hereto agrees
that each reference to "The First National Bank of Chicago" in any Agreement is
hereby amended to be a reference to "Bank One, N.A." and that Bank One, N.A. is
a permitted successor to all of the rights and obligations of The First National
Bank of Chicago under the Transaction Documents.
SECTION 8. Representations and Warranties.
(a) Each of Avondale and ARC represents and warrants to each party
hereto that:
(i) The execution and delivery by it of this Amendment,
and the performance of its obligations under the Agreements as modified
by this Amendment, are within its corporate powers, have been duly
authorized by all necessary corporate action, have received all
necessary governmental approvals other than Assignment of Claims Act
filings (if any shall be required), and other consents or approvals and
do not and will not contravene or conflict with, or create any Adverse
Claim under, (A) any provision of law, (B) its constituent documents,
(C) any court or administrative decree applicable to it or (D) any
contractual restriction binding upon it or its property which conflict
or adverse claim would have a substantial likelihood of having Material
Adverse Affect.
(ii) This Amendment has been duly executed and delivered
by it, and the Agreements, as amended, are its legal, valid and binding
obligations, enforceable against it in accordance with its terms except
as enforceability may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
(iii) The warranties made by it in the Transaction
Documents are true and correct as of the date hereof as though made on
that date, except to the extent that the warranties specifically relate
to an earlier date.
(iv) After giving effect to this Amendment, no Early
Amortization Event or Unmatured Early Amortization Event shall have
occurred and be continuing.
(v) At the time of, and immediately following, the
effectiveness of this Amendment, the aggregate Stated Amount shall not
be less than the Invested Amount.
(b) The Trustee represents and warrants to each party hereto that:
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(i) it is a banking corporation organized, existing and
in good standing under the laws of the State of New York,
(ii) it has full power, authority and right to execute,
deliver and perform this Amendment, and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Amendment, and
(iii) this Amendment has been duly executed and delivered
by the Trustee, and is a legal, valid and binding obligation of the
Trustee, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
SECTION 9. Conditions Precedent. This Amendment shall not be
effective until the requirements of Section 13.1 of the Pooling Agreement and
Section 10.1 of the CPA have been satisfied (including, without limitation,
satisfaction of the Modification Condition) and a replacement Certificate
reflecting such stated amount has been issued pursuant to the CPA; provided,
however that the parties hereto agree that the provisions of Sections 13.1(h)
and 13.1(i) of the Pooling Agreement need not be satisfied in connection with
this Amendment.
SECTION 10. Consents; Acknowledgment. To the extent that any
consent of any party hereto (in any capacity) is required under any Agreement or
any other Transaction Document to any of the foregoing amendments to an
Agreement to which it is not a party, such party hereby grants such consent. The
parties hereby agree that each reference in any Transaction Document to the
"Stated Amount" of a Certificate means the Stated Amount of the Certificate
after giving effect to any reductions made pursuant to this Amendment.
SECTION 11. Binding Effect; Ratification.
(a) This Amendment shall become effective, as of the date first
set forth above, when counterparts hereof shall have been executed and delivered
by the parties hereto and the requirements of Section 8 hereof have been
satisfied, and thereafter shall be binding on the parties hereto and their
respective successors and assigns.
(b) On and after the execution and delivery hereof, this Amendment
shall be a part of each Agreement amended hereby and each reference in each such
Agreement to "this Agreement" or "hereof", "hereunder" or words of like import,
and each reference in any other Transaction Document or contained in any notice,
request, or other document to such Agreement shall mean and be a reference to
such Agreement as amended hereby.
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(c) Except as expressly amended hereby, the Agreements shall
remain in full force and effect and are hereby ratified and confirmed by the
parties hereto.
SECTION 12. Miscellaneous.
(a) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW.
(b) Headings used herein are for convenience of reference only and
shall not affect the meaning of this Amendment or any provision hereof.
(c) This Amendment may be executed in any number of counterparts,
and by the parties hereto on separate counterparts, each of which when executed
and delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Executed counterparts may be
delivered electronically.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective officers thereunto duly authorized as of the date first above
written.
AVONDALE RECEIVABLES COMPANY
By:
Name:
Title:
AVONDALE ▇▇▇▇▇, INC.
By:
Name:
Title:
BANK ONE, N.A.
By:
Name:
Title:
FALCON ASSET SECURITIZATION CORPORATION
By:
Name:
Title:
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WACHOVIA BANK, N.A.
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
THE TRUSTEE JOINS IN THIS AMENDMENT FOR
PURPOSES OF EVIDENCING ITS CONSENT
THERETO.
MANUFACTURERS AND TRADERS TRUST COMPANY,
AS TRUSTEE
By:
Name:
Title:
EXHIBIT A
SCHEDULE I TO TRANSFER SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: November 21, 1997, as amended and restated April [____,] 2001
Transferred Percentage: 33.33%
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Commitment Commitment Outstanding
Seller Existing Revised Certificate Pro Rata Share
Balance
---------------------------------------------------------------------------------------------------------------------------------
Bank One, N.A. $100,000,000 $66,670,000 $100,000,000 66.67%
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Outstanding
Commitment Certificate
Assignee Initial Balance Pro Rata Share
-------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A. $33,330,000 $100,000,000 33.33%
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Address for Notices:
Wachovia Bank, N.A., Assignee
c/o Wachovia Corporate Services, Inc.
Capital Markets Division
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT B
SCHEDULE I TO TRANSFER SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: May 1, 1998, as amended and restated April [____], 2001
Transferred Percentage: 16.67% of the Outstanding Certificate Balance
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Commitment Commitment Outstanding Pro Rata
Seller Existing Revised Certificate Share*
---------------------------------------------------------------------------------------------------------------------------------
---------------
* 33.33% of the Outstanding Certificate Balance is held by an additional
Assignee pursuant to a Transfer Supplement dated as of November 21,
1997.
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Balance
---------------------------------------------------------------------------------------------------------------------------------
Bank One, N.A. $66,670,000 $50,000,000 $100,000,000 50.00%
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Outstanding
Commitment Certificate
Assignee Initial Balance Pro Rata Share
-------------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $16,670,000 $100,000,000 16.67%
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Address for Notices:
The Chase Manhattan Bank, Assignee
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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