EXHIBIT (b)(2)
WAIVER AND AMENDMENT NO. 12
to
RECEIVABLES PURCHASE AGREEMENTS
This WAIVER AND AMENDMENT NO. 12 to RECEIVABLES PURCHASE AGREEMENTS,
dated as of June 15, 1999 (this "Amendment"), is entered into by and among
Georgia-Pacific Corporation (the "Seller"), Asset Securitization Cooperative
Corporation ("ASCC"), Corporate Asset Funding Company, Inc. ("CAFCO") and Falcon
Asset Securitization Corporation ("Falcon") (each of ASCC, CAFCO and Falcon,
individually, a "Purchaser," and, collectively, the "Purchasers"), Canadian
Imperial Bank of Commerce ("CIBC"), Citibank, N.A. ("Citibank") and The First
National Bank of Chicago ("First Chicago") (each of CIBC, Citibank and First
Chicago, individually, a "Secondary Purchaser," and, collectively, the
"Secondary Purchasers"), and CIBC, as administrative agent for the Purchasers
and the Secondary Purchasers (the "Administrative Agent").
WHEREAS, the Seller, the Purchasers and the Administrative Agent are
parties to that certain Receivables Purchase Agreement dated as of June 1, 1990,
as amended (the "Primary Agreement"; the terms defined therein being used herein
as therein defined unless otherwise defined herein), providing for the sale by
the Seller of certain Receivable Interests to the Purchasers; and
WHEREAS, the Seller, the Secondary Purchasers and the Administrative
Agent are parties to that certain Receivables Purchase Agreement dated as of
June 1, 1990, as amended (the "Secondary Agreement," and, together with the
Primary Agreement, the "Agreements"), providing for the sale by the Seller of
certain Receivable Interests to the Secondary Purchasers; and
WHEREAS, the parties hereto desire to (i) increase the Purchase Limit
to $750,000,000 under the Primary Agreement, (ii) effect a reallocation of the
Pro Rata Shares, (iii) waive certain provisions of Section 2.01(d) of the
Primary Agreement in connection with such reallocation, and (iv) add one Seller
Subsidiary and one Seller Division to the facility provided to the Seller by the
Purchasers.
NOW, THEREFORE, in consideration of the mutual benefits to the parties
hereto resulting from the reallocation and amendment to the Agreements, the
parties hereto agree as follows:
1. Increase in Purchase Limit and Commitment.
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(a) The Primary Purchasers hereby agree that the aggregate Purchase
Limit under the Primary Agreement shall be increased to $750,000,000.
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(b) The Secondary Purchasers hereby agree that the aggregate
Commitment under the Secondary Agreement shall be increased to $750,000,000.
2. Reallocation of Pro Rata Shares.
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(a) Notwithstanding the provisions of the first sentence of
Section 2.01(d) of the Primary Agreement, after giving effect to the increase in
the Purchase Limit as described in Section 1 above, the Pro Rata Shares of the
Purchasers under the Primary Agreement shall be reallocated as follows:
ASCC..........33.33333334%
CAFCO.........33.33333333%
Falcon........33.33333333%
(b) Each Purchaser and Secondary Purchaser expressly consents to the
reallocations set forth above and waives compliance with the notice requirement
set forth in the first sentence of Section 2.1(d) of the Primary Agreement.
The parties further agree that any noncompliance with the provisions of the
Agreements by virtue of the reallocation set forth above shall be deemed not to
constitute a breach or default by the Seller under the Agreements, and that such
reallocation shall be deemed to be permissible and effective in all respects and
for all purposes under the Agreements.
3. Increase in Commitment of Secondary Purchasers. Each Secondary
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Purchaser hereby agrees that, effective immediately upon the reallocation of the
Pro Rata Shares as described in Section 1 above, the Commitment of such
Secondary Purchaser shall be adjusted as required by the Secondary Agreement.
4. Addition of Seller Division.
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(a) Notwithstanding the provisions of the first sentence of Section
2.01(h) of the Primary Agreement, the Seller shall commence including all
Receivables generated by the Distribution Division of the Seller (the "New
Seller Division") in Receivables Pools.
(b) Each Purchaser and Secondary Purchaser expressly consents to the
inclusion of all Receivables generated by the New Seller Division in Receivables
Pools and waives compliance with the notice requirement set forth in the first
sentence of Section 2.01(h) of the Primary Agreement. The parties further agree
that any noncompliance with the provisions of the Agreements by virtue of the
foregoing shall be deemed not to constitute a breach or default by the Seller
under the Agreements, and that the inclusion of such Receivables in Receivables
Pools shall be deemed to be permissible and effective in all respects and for
all purposes under the Agreements.
5. Amendment of the Primary Agreement.
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(a) Article I of the Primary Agreement is hereby amended by adding the
following definitions in their proper alphabetical sequence:
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"Dilution Ratio" means, as of any date of determination, a fraction,
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expressed as a percentage, the numerator of which is the aggregate dollar
amount of reductions of the Outstanding Balance of all Pool Receivables
given to Obligors in accordance with the Credit and Collection Policy
(other than as a result of Collections or writeoffs) during the last full
calendar month immediately preceding such date and the denominator of which
is the aggregate amount of the Outstanding Balance of all Pool Receivables
as of the end of such full calendar month.
"Dilution Reserve" means, as of any date of determination, an amount
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equal to 3 times the Dilution Ratio.
(b) The definition of "Investors Rate" in Article I of the Primary
Agreement is hereby amended by (i) deleting paragraph (a) in its entirety and
substituting in replacement thereof the following:
(a) the sum of (x) the rate (or if more than one rate, the weighted
average of the rates) (by means of interest rate xxxxxx or otherwise) at
which (i) in the case of ASCC, all of the Notes of ASCC outstanding during
such Settlement Period have been sold by any placement agent or commercial
paper dealer selected by ASCC, as determined by ASCC and reported by ASCC
to the Seller and the Collection Agent, and (ii) in the case of a Purchaser
other than ASCC, Notes of such Purchaser that are allocated, in whole or in
part, by such Purchaser to fund or maintain such Purchaser's Receivable
Interest during such Settlement period may have been sold by any placement
agent or commercial paper dealer selected by such Purchaser, as determined
by such Purchaser and reported to the Seller and the Collection Agent;
provided that, if the rate or rates, as agreed between any such agent or
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dealer and such Purchaser with regard to any Settlement Period for any
Receivable Interest, is a discount rate (or rates), the "Investor Rate" for
such Settlement Period shall be the rate (or if more than one rate, the
weighted average of the rates) resulting from converting such discount rate
(or rates) to an interest-bearing equivalent rate per annum, and (y) .05%
per annum;
and (ii) deleting the percentage "1%" contained in paragraph (b) thereof and
substituting in replacement thereof the percentage "1.25%".
(c) The definition of "Reserve" in Article I of the Primary Agreement
is hereby amended in its entirety as follows:
"Reserve" means, on any date, the greater of (i) 17.75% of Combined
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Capital and (ii) the sum of (a) the product of (1) the Loss Reserve and
(2) the aggregate Outstanding Balance of all Pool Receivables on such
date, (b) the aggregate Yield Reserve for all Receivable Interests owned
by the Purchasers and the aggregate "Yield Reserve" for all
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"Receivable Interests" owned by the Secondary Purchasers under the
Secondary Purchaser Agreement, (c) the aggregate Collection Agent Fee
Reserve, if any, for all Receivable Interests owned by the Purchasers and
the aggregate "Collection Agent Fee Reserve", if any, of all "Receivable
Interests" owned by the Secondary Purchasers under the Secondary Purchaser
Agreement, and (d) the product of (1) the Dilution Reserve and (2) the
aggregate Outstanding Balance of all Receivables on such date.
(d) Section 2.05(a) of the Primary Agreement is hereby amended by
deleting paragraphs (i), (ii) and (iii) thereof in their entirety and
substituting in replacement thereof the following:
(i) to each Purchaser, an annual fee (the "Program Fee") equal to the
product of (i) the average daily outstanding Aggregate Capital of such
Purchaser and (ii) .28% per annum;
(ii) to each Purchaser, a fee (the "Investor Fee") computed at the per
annum rate of 15/1000 of 1% on the average daily amount of Aggregate
Capital of such Purchaser; and
(iii) to each Purchaser, a fee (the "Commitment Fee") at the per
annum rate of .18% on the average daily amount of such Purchaser's unused
Purchase Limit.
(e) Schedule V of the Primary Agreement is hereby amended in its
entirety as set forth in Exhibit A hereto.
6. Amendment of the Secondary Agreement. (a) The definition of
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"Investor Rate" in Article I of the Secondary Agreement is hereby amended by
deleting the percentage "1%" contained in paragraph (a) thereof and substituting
in replacement thereof the percentage "1.25%."
7. Conditions Precedent. The effectiveness of this Amendment is
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subject to the conditions precedent that the Purchasers and the Administrative
Agent shall have received the following, each in form and substance satisfactory
to the Purchasers and the Administrative Agent:
(a) This Amendment, executed by each of the parties hereto.
(b) A certificate from a Responsible Officer of the Seller certifying
that (i) the representations and warranties contained in Article IV of the
Agreements as amended hereby are true and correct on and as of the date
hereof as though made on and as of such date, and (ii) no event has
occurred and is continuing, or would result from the execution,
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delivery or performance of this Amendment or from the consummation of the
transactions contemplated hereby, that constitutes an Event of Termination
or a Potential Termination Event.
(c) The payment of all fees due and payable on or prior to such date,
including, without limitation, (i) a fee payable to the Administrative
Agent as separately agreed between the Seller and the Administrative Agent,
and (ii) a structuring fee payable to each Primary Purchaser in the amount
of .05% of the amount of such Primary Purchaser's Purchase Limit after
giving effect to the transactions contemplated by this Amendment (whether
used or unused).
8. Conditions Subsequent. The Seller shall, within 15 days of the
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date of this Amendment, deliver to the Purchasers and the Administrative Agent
the following, each in form and substance satisfactory to the Purchasers and the
Administrative Agent:
(a) Certificates of the Secretary or Assistant Secretary of the Seller
and G-P Gypsum Corporation, a Delaware corporation (the "New Seller
Subsidiary"), certifying (i) the names and true signatures of their respective
officers authorized to sign this Amendment, the Transfer Agreement and the other
documents to be delivered by them hereunder or in connection herewith, (ii)
evidence of corporate authorization with respect to the transactions
contemplated by this Amendment, (iii) the articles of incorporation (attached
and appropriately certified by the Secretary of State of the Seller's and the
New Seller Subsidiary's jurisdiction of incorporation) and (iv) the by-laws and
all amendments thereto of the Seller and the New Seller Subsidiary.
(b) An executed Transfer Agreement executed by the Seller and the New
Seller Subsidiary, and a Consent and Acknowledgment from the New Seller
Subsidiary.
(c) A certificate from a Responsible Officer of the New Seller
Subsidiary certifying that (i) the representations and warranties contained in
the Transfer Agreement are true and correct on and as of the date hereof as
though made on and as of such date, and (ii) no event has occurred and is
continuing, or would result from the execution, delivery or performance of this
Amendment or from the consummation of the transactions contemplated hereby, that
constitutes an Event of Termination or a Potential Termination Event.
(d) Acknowledgment copies of proper financing statements, duly filed
under the UCC of all jurisdictions that any Purchaser or the Administrative
Agent may deem necessary or desirable in order to perfect the ownership
interests of the Seller in the Receivables, Contracts or Related Security
purchased by the Seller from the New Seller Subsidiary pursuant to the Transfer
Agreement.
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(e) Acknowledgment copies of proper UCC termination statements, if
any, necessary to release all security interests and other rights of any Person
in the Receivables, Contracts or Related Security previously granted by the New
Seller Subsidiary.
(f) Executed Lock-Box Agreements and undated executed copies of Lock-
Box Notices to the Lock-Box Banks for each Lock-Box Account maintained by the
New Seller Subsidiary.
(g) Undated executed Depositary Notices to each Depositary Bank for
each Depositary Account and undated executed Concentration Notices to each
Concentration Bank for each Concentration Account, in each case, maintained by
the New Seller Subsidiary.
(h) A favorable opinion of counsel for the Seller and for the New
Seller Subsidiary as to such matters as the Purchasers or the Administrative
Agent may reasonably request.
The failure of the Seller to comply with the provisions of this
Section 8 shall constitute an Event of Termination under the Agreements with the
same force and effect as if such provisions were set forth therein, and shall
entitle the Purchasers and the Administrative Agent to exercise any and all
remedies described in the Agreements.
9. Covenants.
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(a) The Seller shall, within 90 days of the date hereof, organize a
bankruptcy remote special purpose entity (the "SPE") and shall cause such SPE to
enter into (i) an agreement with the Seller and the Seller Subsidiaries
(including the New Seller Subsidiary) pursuant to which such SPE shall purchase
from time to time from the Seller and the Seller Subsidiaries Receivables,
Contracts and Related Security and (ii) agreements with the Purchasers and the
Administrative Agents pursuant to which such SPE shall sell from time to time to
the Purchasers undivided percentage ownership interests in such Receivables,
Contracts and Related Security, to the Purchasers. The form of such SPE and the
substance of the organizational documents, and the form and substance of the
foregoing agreements shall contain, among other things, the provisions set forth
in Exhibit B hereto and shall, in all respects, be reasonably satisfactory to
the Purchasers and the Administrative Agent.
(b) Without limiting any other rights that the Administrative Agent or
the Purchasers or any Affiliate thereof and their respective officers,
directors, employees and agents (each, an "Indemnified Party") may have
hereunder or under applicable law, from the date hereof until the date on which
the provisions of Section 9(a) above have been complied with, the Seller hereby
agrees to indemnify each Indemnified Party from and against any and all claims,
losses
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and liabilities (including reasonable attorneys fees and expenses) arising out
of or resulting from (i) the failure of the Purchasers and the Administrative
Agent, (ii) the credit quality of the Seller, and (iii) the failure of the
Purchasers to adequately reserve for the dilution of Receivables due to the
failure or inability of the Seller to provide sufficient historical dilution
data, as determined in the reasonable discretion of the Purchasers and the
Administrative Agent, with respect to the Receivables to the Purchasers and the
Administrative Agent to have received on the date hereof the documents and
opinions set forth in Section 8 above; provided, however, that the Seller
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shall not be liable to any Indemnified Party with respect to any claims, losses
or liabilities under clauses (i) or (ii) above to the extent that such claims,
losses and liabilities would have arisen or resulted if the facilities provided
by the Purchasers were structured as contemplated by Section 9(a) above.
(c) The failure of the Seller to comply with the provisions of this
Section 9 shall constitute an Event of Termination under the Agreements with the
same force and effect as if such provisions were set forth therein, and shall
entitle the Purchasers and the Administrative Agent to exercise any and all
remedies described in the Agreements.
10. Agreements to Remain in Effect. Upon and after the effective
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date of this Amendment, all references to the Agreements in the Agreements, or
in any related document, shall mean the Agreements as amended hereby. Except as
specifically amended by this Amendment, the Agreements shall remain in full
force and effect.
11. Governing Law; Execution in Counterparts.
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(a) This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) 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 instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
GEORGIA-PACIFIC CORPORATION
/s/ Xxxxx X. Xxxx
By: _____________________________
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
ASSET SECURITIZATION COOPERATIVE
CORPORATION
/s/ Xxxxx Xxxxxx
By: _____________________________
Name: Xxxxx Xxxxxx
Title: CFO
CORPORATE ASSET FUNDING COMPANY,
INC.
By: CITICORP NORTH AMERICA, INC., AS
ATTORNEY-IN-FACT
/s/ Xxxxx Free
By: _____________________________
Name: Xxxxx Free
Title: Vice President
FALCON ASSET SECURITIZATION
CORPORATION
/s/ Xxxxx X. Xxxxx
By: _____________________________
Name: Xxxxx X. Xxxxx
Title: Managing Director
(Signatures continued on following page.)
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CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxx X. Xxxxx
_____________________________
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
CITIBANK, N.A.
By: /s/ Xxxxx Free
_____________________________
Name: Xxxxx Free
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxx
_____________________________
Name: Xxxxx X. Xxxxx
Title: Vice President