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EXHIBIT 10.3
AMENDMENT NO. 1 TO
CREDIT AND SECURITY AGREEMENT
AMENDMENT NO. 1 (the "Amendment"), dated as of July 31, 2000, to the
Credit and Security Agreement, dated as of March 31, 2000, among XXXXXX TRADE
FUNDING LLC, as borrower, XXXXXX WORLDWIDE, INC., as guarantor of the servicer's
performance, XXXXXX COLLECTIONS LIMITED PARTNERSHIP, as the servicer, BLUE RIDGE
ASSET FUNDING CORPORATION, as lender and WACHOVIA BANK, N.A., individually and
as administrator (as amended, modified or supplemented from time to time, the
"Agreement"). Capitalized terms used and not defined herein shall have the same
meanings as defined in the Agreement.
WHEREAS, Wachovia, Bank One, NA, Xxxxxx Collections, Xxxxxx Receivables
LLC and Xxxxxx Lease Receivables LLC entered into the Intercreditor Agreement
(Post-Lease) on June 7, 2000;
WHEREAS, Xxxxxx has informed the Administrator that it intends to sell
Xxxxxx Litigation Services, Inc. ("LLS"), which is an Originator of Receivables
that have been and are being sold to the Borrower;
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments.
(a) Section 7.3(f) is hereby amended by adding the following sentence
at the end of the sub-section:
Xxxxxx shall not consent to or permit Xxxxxx Trade Receivables LLC nor
Xxxxxx Receivables LLC to enter into any amendment, modification or
restatement of, or supplement to, their respective certificates of
formation or operating agreements without the prior written consent of
the Administrator.
(b) The definition of "Aggregate Commitment" in Appendix A of the
Agreement is hereby amended in its entirety to read as follows:
AGGREGATE COMMITMENT: THE AGGREGATE OF THE COMMITMENTS OF THE LIQUIDITY
BANKS, NOW $48,000,000, AS REDUCED OR INCREASED FROM TIME TO TIME
PURSUANT TO THE TERMS HEREOF.
(c) The following definition is hereby added to Appendix A of the
Agreement in the appropriate alphabetical order:
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BILLED IN ADVANCE RENTAL PAYMENT: ANY RENTAL PAYMENT RELATING TO ANY
RENTAL PERIOD THAT BEGINS ON OR BEFORE THE DATE (I) THE INVOICE FOR
SUCH RENTAL PAYMENT WAS SENT TO THE RELATED OBLIGOR AND WHICH ENDS
AFTER THE DATE SUCH INVOICE WAS SENT TO THE RELATED OBLIGOR OR (II) THE
PAYMENT FOR SUCH RENTAL PERIOD IS DUE, IF NO INVOICE IS SENT TO SUCH
OBLIGOR AND WHICH ENDS AFTER THE DUE DATE FOR SUCH RENTAL PERIOD.
(d) The following definition is hereby added to Appendix A of the
Agreement in the appropriate alphabetical order:
BILLED IN ARREARS RENTAL PAYMENT: ANY RENTAL PAYMENT RELATING TO ANY
RENTAL PERIOD THAT ENDS ON OR BEFORE THE DATE THE INVOICE FOR SUCH
RENTAL PAYMENT WAS SENT TO THE RELATED OBLIGOR, PROVIDED THAT SUCH
RENTAL PAYMENT IS, TO THE ADMINISTRATOR'S SATISFACTION, IDENTIFIED
SEPARATELY FROM ALL BILLED IN ADVANCE RENTAL PAYMENTS.
(e) The following definition is hereby added to Appendix A of the
Agreement in the appropriate alphabetical order:
CLICK CHARGE: ANY "PER USE" CHARGE METER BILLING OR FEE PAYABLE BY AN
OBLIGOR REPRESENTING USAGE IN EXCESS OF THE PERMITTED PERIODIC USAGE
DESCRIBED IN THE CONTRACT WITH SUCH OBLIGOR WHICH CHARGES OR FEES ARISE
IN CONNECTION WITH ANY EQUIPMENT OWNED BY SUCH OBLIGOR AND SERVICED BY
AN ORIGINATOR OR LEASED OR RENTED BY SUCH OBLIGOR UNDER ANY FINANCE OR
OPERATING LEASE FROM AN ORIGINATOR (FOR EXAMPLE, A CHARGE PAYABLE FOR
EACH PHOTOCOPY MADE ON SUCH EQUIPMENT), WHICH CHARGES OR FEES ARE
BOOKED ON AN ORIGINATOR'S LEGACY BAM ACCOUNTING SYSTEM WITH INVOICE
CODE "RSX" OR "XSX" BUT NOT WITH INVOICE CODE "MSX" AND WHICH CHARGES
OR FEES, AS THE CASE MAY BE, HAVE, TO THE ADMINISTRATOR'S SATISFACTION,
BEEN IDENTIFIED SEPARATELY FROM ALL RENTAL PAYMENTS.
(f) The last sentence of the definition of "Collections" in Appendix A
of the Agreement is hereby amended in its entirety to read as follows:
COLLECTIONS SHALL ALSO INCLUDE (I) AMOUNTS PAID ON THE OBLIGATIONS
PURSUANT TO THE LIMITED SECURED GUARANTY AND (II) ALL TRADE ALLOCATION
AMOUNTS PURSUANT TO THE INTERCREDITOR AGREEMENT.
(g) The definition of "Dilution Horizon Ratio" in Appendix A of the
Agreement is hereby amended in its entirety to read as follows:
DILUTION HORIZON RATIO: AS OF ANY DATE, AN AMOUNT (EXPRESSED AS A
PERCENTAGE) CALCULATED BY DIVIDING THE SUM OF CUMULATIVE SALES FOR THE
MOST RECENT PRECEDING SETTLEMENT PERIOD AND CUMULATIVE SALES FOR THE
SETTLEMENT PERIOD IMMEDIATELY PRECEDING SUCH AFOREREFERENCED SETTLEMENT
PERIOD BY THE NET POOL BALANCE AS OF THE MOST RECENT CUT-OFF DATE.
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(h) The definition of "Dilution Ratio" in Appendix A of the Agreement
is hereby amended in its entirety to read as follows:
DILUTION RATIO: AS OF ANY DATE, AN AMOUNT (EXPRESSED AS A PERCENTAGE)
EQUAL TO A FRACTION, THE NUMERATOR OF WHICH IS THE TOTAL AMOUNT OF
DILUTION DURING THE PREVIOUS SETTLEMENT PERIOD, AND THE DENOMINATOR OF
WHICH IS THE CUMULATIVE SALES GENERATED DURING THE SETTLEMENT PERIOD
ONE MONTH PRIOR TO THE MOST RECENT PRECEDING SETTLEMENT PERIOD.
(i) The definition of "Eligible Receivable" in Appendix A of the
Agreement is hereby amended by (i) deleting the word "and" at the end of clause
(l) thereof, (b) changing the period at the end of clause (m) thereof to a
semicolon, (c) deleting subsections (a) and (b) in their entirety and
substituting the following in lieu thereof and (d) inserting a new clause (n)
after clause (m) as follows:
(A) WHICH IS A RECEIVABLE, BUT NEITHER A BILLED IN ADVANCE RENTAL
PAYMENT NOR A GMA PAYMENT, THAT HAS BEEN SOLD (I) TO XXXXXX RECEIVABLES
PURSUANT TO THE SALE AGREEMENT (STEP 1) IN A "TRUE SALE" TRANSACTION,
(II) TO LTR LLC PURSUANT TO THE SALE AGREEMENT (STEP 2) IN A "TRUE
SALE" TRANSACTION, OR (III) TO THE BORROWER PURSUANT TO THE SALE
AGREEMENT (STEP 3); PROVIDED, HOWEVER, THAT FROM AND AFTER MAY 26,
2000, ANY AND ALL RECEIVABLES ORIGINATED BY XXXXXX LITIGATION SERVICES,
INC. SHALL BE EXCLUDED FROM THE "ELIGIBLE RECEIVABLES";
(B) AS TO WHICH THE PERFECTION OF THE ADMINISTRATOR'S SECURITY
INTEREST THEREIN IS GOVERNED BY THE LAWS OF A JURISDICTION WHERE THE
UNIFORM COMMERCIAL CODE - SECURED TRANSACTIONS IS IN FORCE, AND WHICH
CONSTITUTES AN "ACCOUNT" OR A "GENERAL INTANGIBLE" AS DEFINED IN THE
UNIFORM COMMERCIAL CODE AS IN EFFECT IN SUCH JURISDICTION;
(N) IF SUCH RECEIVABLE ARISES FROM THE SALE OF OFFICE EQUIPMENT
PURCHASED FROM HEWLETT PACKARD COMPANY: (I) MORE THAN 30 DAYS HAVE
ELAPSED SINCE THE ORIGINATOR SOLD SUCH OFFICE EQUIPMENT TO AN OBLIGOR,
AND (II) ON OR BEFORE SEPTEMBER 7, 2000, THE BORROWER HAS DELIVERED TO
THE ADMINISTRATOR A LETTER (IN A FORM REASONABLY ACCEPTABLE TO THE
ADMINISTRATOR) FROM HEWLETT PACKARD COMPANY ADDRESSED TO THE
ADMINISTRATOR ON BEHALF OF THE LENDERS (OR EXPRESSLY STATING THAT THE
LENDERS ARE PERMITTED TO RELY THEREON) CONFIRMING THAT HEWLETT PACKARD
COMPANY'S SECURITY INTEREST IN GOODS MANUFACTURED AND SOLD BY HEWLETT
PACKARD COMPANY TO AN ORIGINATOR (OR ONE OF ITS AFFILIATES) IS LIMITED
TO SUCH GOODS THAT HAVE NOT YET BEEN PURCHASED AND PAID FOR BY AN
ORIGINATOR AND THE PROCEEDS OF ANY SALE THEREOF, DOES NOT EXTEND TO ANY
GOODS MANUFACTURED AND SOLD BY HEWLETT PACKARD COMPANY ONCE THE RELATED
ORIGINATOR PAYS THE PURCHASE PRICE THEREFOR AND WOULD NOT PERMIT
HEWLETT PACKARD COMPANY TO REPOSSESS SUCH GOODS FROM ANY OBLIGOR.
(j) The following definition is hereby added to Appendix A of the
Agreement in the appropriate alphabetical order:
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GMA PAYMENTS: ANY RIGHT TO PAYMENT REPRESENTING THE FULL ANNUAL PAYMENT
(AND NOT A PARTIAL OR MONTHLY INSTALLMENT) FOR ANY MAINTENANCE
AGREEMENT WHEREBY AN ORIGINATOR AGREES TO MAINTAIN EQUIPMENT OWNED,
LEASED OR RENTED BY AN OBLIGOR, EXCLUDING ANY MAINTENANCE AGREEMENT
RELATED TO ANY EQUIPMENT LEASED BY AN OBLIGOR, WHICH LEASE GIVES RISE
TO A LEASE RECEIVABLE (AS DEFINED IN THE INTERCREDITOR AGREEMENT).
(k) The definition of "Intercreditor Agreement" in Appendix A of the
Agreement is hereby amended in its entirety to read as follows:
INTERCREDITOR AGREEMENT: THE INTERCREDITOR AGREEMENT (POST-LEASE),
DATED AS OF JUNE 7, 2000, AMONG WACHOVIA, BANK ONE, NA, XXXXXX
COLLECTIONS, XXXXXX RECEIVABLES LLC AND XXXXXX LEASE RECEIVABLES LLC.
(l) The following definition is hereby added to Appendix A of the
Agreement in the appropriate alphabetical order:
LEASE ALLOCATION AMOUNT: AS DEFINED IN THE INTERCREDITOR AGREEMENT.
(m) The definition of "Lease Payments" in Appendix A of the Agreement
is hereby amended in its entirety to read as follows:
LEASE PAYMENTS: ALL RIGHTS TO RECEIVE PAYMENT UNDER OR IN RESPECT OF
ANY FINANCE LEASE OF EQUIPMENT OR ANY MAINTENANCE CONTRACT RELATED TO
ANY SUCH FINANCE LEASE OF EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ALL
LEASE ALLOCATION AMOUNTS PURSUANT TO THE INTERCREDITOR AGREEMENT, BUT
EXCLUDING ALL RENTAL PAYMENTS, CLICK CHARGES AND GMA PAYMENTS.
(n) The definition of "Receivable" in Appendix A of the Agreement is
hereby amended in its entirety to read as follows:
RECEIVABLE: ANY RIGHT TO PAYMENT FOR EQUIPMENT SOLD (WHICH EQUIPMENT
HAS BEEN SHIPPED TO THE RELATED OBLIGOR), SUPPLIES SOLD, SERVICES THAT
HAVE BEEN RENDERED, RENTAL PAYMENTS, GMA PAYMENTS AND/OR CLICK CHARGES
AND WHICH ARISE IN THE ORDINARY COURSE OF SUCH ORIGINATOR'S BUSINESS OF
THE SALE, LEASE AND RENTAL OF OFFICE EQUIPMENT AND/OR THE RENDERING OF
OFFICE SERVICES ON THE PREMISES OF CERTAIN OBLIGORS, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO PAYMENT OF ANY INTEREST OR FINANCE CHARGES AND
OTHER AMOUNTS WITH RESPECT THERETO, WHICH IS SOLD OR CONTRIBUTED UNDER
ANY OF THE SALE AGREEMENTS, EXCLUDING IN ALL CASES ANY LEASE PAYMENTS.
SEPARATE CHARGES INCLUDED IN A SINGLE INVOICE, TO THE EXTENT THAT ANY
SUCH CHARGE SATISFIES THE REQUIREMENTS OF THE FIRST SENTENCE OF THIS
DEFINITION, SHALL CONSTITUTE SEPARATE RECEIVABLES, NOTWITHSTANDING THAT
THE OBLIGOR MAY TREAT SUCH INVOICE AS A SINGLE PAYMENT OBLIGATION.
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(o) The following definition is hereby added to Appendix A of the
Agreement in the appropriate alphabetical order:
RENTAL PAYMENT: ALL RIGHT, TITLE AND INTEREST OF AN ORIGINATOR, XXXXXX
RECEIVABLES AND LTR LLC TO RECEIVE ANY PAYMENT FROM AN OBLIGOR IN
RESPECT OF ANY PERIODIC PAYMENT UNDER ANY OPERATING LEASE OF OFFICE
EQUIPMENT LEASED OR RENTED TO SUCH OBLIGOR UNDER A CONTRACT, WHICH IS
BOOKED ON SUCH ORIGINATOR'S LEGACY BAM ACCOUNTING SYSTEM WITH AN
INVOICE CODE OF "RSX" AND EXCLUDING ANY PAYMENTS OF FINANCE LEASES
BOOKED ON EITHER (I) AN ORIGINATOR'S LEGACY BAM ACCOUNTING SYSTEM WITH
AN INVOICE CODE OF "MSX", OR (II) AN ORIGINATOR'S INFOLEASE ACCOUNTING
SYSTEM.
(p) The definition of "Trade Allocation" in Appendix A of the Agreement
is hereby deleted and the following definition is hereby added to Appendix A of
the Agreement in the appropriate alphabetical order:
TRADE ALLOCATION AMOUNT: AS DEFINED IN THE INTERCREDITOR AGREEMENT.
SECTION 2. Representations and Warranties; No Liquidation Events. Each
Loan Party hereby certifies that except as contemplated by the amendments above
or by that waiver letter from the Administrator of even date herewith (i) each
of the representations and warranties set forth in Article VI of the Agreement
is true and correct on the date hereof, as if each such representation and
warranty were made on the date hereof, and (ii) no Liquidation Event or
Unmatured Liquidation Event has occurred and is continuing.
SECTION 3. Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Agreement shall remain in full force and
effect. All references to the Agreement shall be deemed to mean the Agreement as
modified hereby. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and conditions of the Agreement, as amended by this
Amendment, as though such terms and conditions were set forth herein.
SECTION 4. Conditions to Effectiveness; Effective Dates. It is a
condition to the effectiveness of this Amendment that each of the following be
delivered to the Administrator, each of which shall be in form and substance
reasonably satisfactory to the Administrator:
(a) Opinions of counsel to (i) the Originators, Xxxxxx Receivables and
LTR LLC to the effect that the Receivables, the Related Security and the
proceeds thereof transferred by each such Person under the Sale Agreement (Step
1), the Sale Agreement (Step 2) and the Sale Agreement (Step 3) constitutes a
"true sale" and that such Receivables, the Related Security and the proceeds
thereof are not the property of the bankruptcy or insolvency estate of the
transferor and would not be subject to the "automatic stay" of Section 362 of
the Bankruptcy Code and (ii) the Originators, Xxxxxx Receivables, LTR LLC and
the Borrower to the effect that each of the Sale Agreement (Step 1), the Sale
Agreement (Step 2), the Sale Agreement (Step 3) and the Agreement create valid
and enforceable security interests (under applicable law) in the
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Receivables, the Related Security and the proceeds thereof transferred by each
such Person under such agreements, which security interests are not subject to
any prior lien;
(b) Duly executed and delivered amendment to the Sale Agreement (Step
1) to remove Xxxxxx Litigation Services, Inc. as an Originator;
(c) Executed and duly filed amendments to UCC financing statements in
all applicable jurisdictions reflecting the amendments made herein;
(d) Executed amendments to the formation documents of each of, Xxxxxx
Receivables, LTR LLC and the Borrower to reflect the amendments made herein; and
(e) Such other agreements, instruments, certificates, opinions and
other documents as the Administrator may reasonably request in connection with
any other matter contemplated by this Amendment.
Upon satisfaction of each of the above-referenced conditions to effectiveness
(other than conditions set forth in paragraphs b and c), the amendments and
modifications set forth herein shall be effective as of March 31, 2000. The
Administrator agrees that the conditions set forth in paragraphs b and c above
may be completed with in seven (7) days from the date hereof; and the Loan
Parties covenant complete such conditions set forth in paragraphs b and c above
with such time period and agree that a failure to do so shall constitute a
Liquidation Event.
SECTION 5. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts, and
by the different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original instrument but all of which together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
(b) The descriptive headings of the various sections of this Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as
provided in the Agreement.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
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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.
XXXXXX TRADE FUNDING LLC, as the Borrower and a
Loan Party
By:
---------------------------------------------
Name:
Title:
XXXXXX WORLDWIDE, INC., as guarantor of the
servicer's performance and a Loan Party
By:
---------------------------------------------
Name:
Title:
XXXXXX COLLECTIONS LIMITED PARTNERSHIP, as
the initial Servicer and a Loan Party
By:
---------------------------------------------
Name:
Title:
BLUE RIDGE ASSET FUNDING CORPORATION, as
Lender
By Wachovia Bank, N.A.,
as Attorney-In-Fact
By:
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A., as the Administrator
By:
---------------------------------------------
Name:
Title:
