Exhibit 4.2
EXECUTION COPY
FIRST AMENDMENT, dated as of November 19, 1999 (this "AMENDMENT"), to
the Series 1997-2 Supplement, dated as of July 30, 1997 (the "SUPPLEMENT"),
between AESOP FUNDING II L.L.C., a Delaware limited liability company
("AFC-II"), and XXXXXX TRUST AND SAVINGS BANK, an Illinois banking corporation,
as trustee (in such capacity, the "TRUSTEE"), to the Amended and Restated Base
Indenture, dated as of July 30, 1997, between AFC-II and the Trustee, as amended
as of July 31, 1998 and September 15, 1998 (the "BASE INDENTURE").
W I T N E S S E T H:
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WHEREAS, AFC-II has requested, and, upon this Amendment becoming
effective, AFC-II and the Trustee have agreed, that certain provisions of the
Supplement be amended in the manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINED TERMS. All capitalized terms defined in Schedule I
to the Base Indenture or the Supplement and used herein shall have the meanings
given to them therein.
2. AMENDMENTS TO ARTICLE I OF THE SUPPLEMENT. Article I of the
Supplement is hereby amended by (a) deleting from subsection (b)
thereof the definitions of the following defined terms in their
respective entireties and substituting in lieu thereof the following
definitions:
"SERIES 1997-2 REQUIRED ENHANCEMENT PERCENTAGE" means, as of
any date of determination, a fraction, expressed as a percentage, the
numerator of which is the sum of (i) the product of (A) the Series
1997-2 Program Enhancement Percentage as of such date times (B) the
Series 1997-2 Program Vehicle Percentage as of such date and (ii) the
product of (A) the Series 1997-2 Required Non-Program Enhancement
Percentage as of such date (or such other percentage as shall be
required by the Rating Agencies to maintain the then current rating
(but not less than A-2 by Standard & Poor's and not less than P-2 by
Moody's) on the Commercial Paper Notes) times (B) the Series 1997-2
Non-Program Vehicle Percentage as of such date.
`SERIES 1997-2 REQUIRED NON-PROGRAM ENHANCEMENT PERCENTAGE'
means, as of any date of determination, the greater of (a) the Series
1997-2 Non-Program Enhancement Percentage as of such date and (b) the
sum of (i) the Series 1997-2 Non-Program Enhancement Percentage as of
such date and (ii) the sum, for each calendar month within the
preceding twelve calendar months (or such fewer number of calendar
months as have elapsed since the Series 1997-2 Closing Date), of the
greater of (x) an amount (not less than zero) equal to 100% minus the
Measurement Month Average for the immediately preceding Measurement
Month and (y) an amount (not less than zero) equal to 100% minus the
Market Value Average as of the Determination Date within such calendar
month (excluding the Market Value Average for any Determination Date
which has not yet occurred)."; and
(b) adding to subsection (b) thereof the following new definitions in
alphabetical order:
"SERIES 1997-2 NON-PROGRAM ENHANCEMENT PERCENTAGE" means, as
of any date of determination (a) during the period from and including
November 19, 1999 to and including January 10, 2000, 16% and (b) on
January 11, 2000 and thereafter, 14.5%.
"SERIES 1997-2 PROGRAM ENHANCEMENT PERCENTAGE" means, as of
any date of determination (a) during the period from and including
November 19, 1999 to and including January 10, 2000, 12% and (b) on
January 11, 2000 and thereafter, 9.50% or, in each case, such other
percentage as shall be required by the Rating Agencies to maintain the
then current rating (but not less than A-2 by Standard & Poor's and not
less than P-2 by Moody's) on the Commercial Paper Notes."
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date on which each of the following conditions precedent have
been satisfied:
(a) AFC-II shall have executed and delivered to the Trustee,
and the Trustee shall have executed, this Amendment;
(b) The Trustee shall have received the consent of Aesop
Funding Corp to this Amendment in the form of Exhibit A hereto;
(c) The Trustee shall have received the consent of The Chase
Manhattan Bank, as Collateral Agent, to this Amendment in the form of
Exhibit B hereto;
(d) The Trustee shall have received the consent of The Chase
Manhattan Bank, as Depositary, to this Amendment in the form of Exhibit
C hereto;
(e) All of the conditions precedent to the effectiveness of
the Second Amendment and Consent, dated as of the date hereof, to the
Liquidity Agreement shall have been satisfied; and
(f) The Trustee shall have received written confirmation from
each of the Rating Agencies that this Amendment will not result in a
downgrading or withdrawal of its rating of the Commercial Paper Notes.
4. MISCELLANEOUS.
(a) PAYMENT OF EXPENSES. AFC-II agrees to pay or reimburse the Trustee
and Aesop Funding Corp. for all of their respective out-of-pocket costs and
reasonable expenses incurred in connection with this Amendment, including,
without limitation, the reasonable fees and disbursements of their respective
counsel.
(b) NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Supplement are and shall
remain in full force and effect.
(c) GOVERNING LAW; COUNTERPARTS. (i) THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(ii) This Amendment may be executed in two or more
counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall
constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with the Trustee.
This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
IN WITNESS WHEREOF, AFC-II and the Trustee have caused this Amendment
to be duly executed by their respective officers as of the day and year first
above written.
AESOP FUNDING II L.L.C.
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK, not in
its individual capacity but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
Exhibit A
to First Amendment
to Supplement
CONSENT OF REQUIRED NOTEHOLDERS
Reference is made to (i) that certain Series 1997-2 Supplement, dated
as of July 30, 1997 (the "SUPPLEMENT"), between Aesop Funding II L.L.C.
("AFC-II") and Xxxxxx Trust and Savings Bank, as trustee (the "Trustee"), to the
Amended and Restated Base Indenture, dated as of July 30, 1997, as amended as of
July 31, 1998 and September 15, 1998, between AFC-II and the Trustee and (ii)
that certain First Amendment to the Supplement, dated as of November 19, 1999
(the "FIRST AMENDMENT TO THE SUPPLEMENT"), between AFC-II and the Trustee.
The undersigned hereby consents to the execution, delivery and
performance of the First Amendment to the Supplement by the parties thereto.
Dated: November 19, 1999
AESOP FUNDING CORP.
By:
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Name:
Title:
Exhibit B
to First Amendment
to Supplement
CONSENT OF COLLATERAL AGENT
Reference is made to (i) that certain Series 1997-2 Supplement, dated
as of July 30, 1997 (the "SUPPLEMENT"), between Aesop Funding II L.L.C.
("AFC-II") and Xxxxxx Trust and Savings Bank, as trustee (the "Trustee"), to the
Amended and Restated Base Indenture, dated as of July 30, 1997, as amended as of
July 31, 1998 and September 15, 1998 (the "BASE INDENTURE"), between AFC-II and
the Trustee, (ii) that certain First Amendment to the Supplement, dated as of
November 19, 1999 (the "FIRST AMENDMENT TO THE SUPPLEMENT"), between AFC-II and
the Trustee and (iii) that certain Collateral Agreement, dated as of July 30,
1997, between Aesop Funding Corp.("AFC") and The Chase Manhattan Bank, as
Collateral Agent, Administrative Agent, LOC Agent and Depositary. Capitalized
terms used in this Consent and not otherwise defined herein are used herein with
the meanings assigned in Schedule I to the Base Indenture or the Supplement, as
the case may be.
The undersigned hereby consents to the execution, delivery and
performance of the First Amendment to the Supplement by the parties thereto;
PROVIDED, HOWEVER that this Consent is conditioned upon the receipt by the
Trustee of the following:
(a) written confirmation from The Chase Manhattan Bank, as Administrative Agent,
of the consent to AFC's consent to the First Amendment to the Supplement by
Liquidity Lenders holding, in the aggregate, Liquidity Commitments, representing
at least 66 2/3% of the Aggregate Liquidity Commitment; and
(b) written confirmation from each of the Rating Agencies that the First
Amendment to the Supplement will not result in a downgrading or withdrawal of
its rating of the Commercial Paper Notes.
Dated: November 19, 1999
THE CHASE MANHATTAN BANK, as Collateral Agent
By:
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Name:
Title:
Exhibit C
to First Amendment
to Supplement
CONSENT OF DEPOSITARY
Reference is made to (i) that certain Series 1997-2 Supplement, dated
as of July 30, 1997 (the "SUPPLEMENT"), between Aesop Funding II L.L.C.
("AFC-II") and Xxxxxx Trust and Savings Bank, as trustee (the "Trustee"), to the
Amended and Restated Base Indenture, dated as of July 30, 1997, as amended as of
July 31, 1998 and September 15, 1998 (the "BASE INDENTURE"), between AFC-II and
the Trustee, (ii) that certain First Amendment to the Supplement, dated as of
November 19, 1999 (the "FIRST AMENDMENT TO THE SUPPLEMENT"), between AFC-II and
the Trustee and (iii) that certain Depositary Agreement, dated as of July 30,
1997, between Aesop Funding Corp.("AFC") and The Chase Manhattan Bank, as
Depositary. Capitalized terms used in this Consent and not otherwise defined
herein are used herein with the meanings assigned in Schedule I to the Base
Indenture or the Supplement, as the case may be.
The undersigned hereby consents to the execution, delivery and
performance of the First Amendment to the Supplement by the parties thereto;
PROVIDED, HOWEVER that this Consent is conditioned upon the receipt by the
Trustee of written confirmation from each of the Rating Agencies that the First
Amendment to the Supplement will not result in a downgrading or withdrawal of
its rating of the Commercial Paper Notes.
Dated: November 19, 1999
THE CHASE MANHATTAN BANK, as Depositary
By:
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Name:
Title:
