Exhibit 10.16
FIRST AMENDMENT
TO
RECEIVABLES PURCHASE AGREEMENT
AND
SUPPORT AGREEMENT
This First Amendment to Receivables Purchase Agreement and Support
Agreement is made as of the 1st day of April, 1996, by and among CITYSIDE
FINANCE CORPORATION I, a Minnesota corporation ("Seller"), CITYSIDE FINANCIAL
SERVICES OF WISCONSIN, INC., a Wisconsin corporation (in its capacity as seller
of certain receivables, "Cityside", and in its capacity as servicer of those
receivables, "Servicer", CLIPPER RECEIVABLES CORPORATION, a Delaware corporation
("Senior Purchaser"), NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association (in its capacity as subordinated purchaser, "Subordinated
Purchaser", and together with Senior Purchaser, "PURCHASERS", STATE STREET
BOSTON CAPITAL CORPORATION, a Massachusetts corporation (the "Administrator"),
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association (in
its capacity as relationship bank, the "Relationship Bank") and X.X. XXXXXXXX,
INC., a Minnesota corporation ("CHR").
RECITALS
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A. Seller, Servicer, Senior Purchaser, Subordinated Purchaser, the
Administrator and the Relationship Bank have entered into a Receivables Purchase
Agreement dated October 23, 1995 (the "Receivables Purchase Agreement"),
pursuant to which Senior Purchaser and Subordinated Purchaser have agreed to
purchase an undivided interest in certain receivables purchased by Seller from
Cityside.
B. To induce Purchasers to enter into the Receivables Purchase
Agreement with Seller, CHR has entered into a Support Agreement dated October
23, 1995 (the "CHR Support Agreement") to and for the benefit of Purchasers.
C. Seller wishes to increase the size of the facility set forth and
described in the Receivables Purchase Agreement and CHR wishes to modify its
ownership structure of Servicer and Seller and, pursuant to the terms and
subject to the conditions set forth in this First Amendment, the other parties
hereto have agreed to such request.
ACCORDINGLY, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise expressly set forth herein, all
capitalized terms used in this First Amendment which are defined in the
Receivables Purchase Agreement shall have the same meanings assigned to them in
the Receivables Purchase Agreement.
2. Representations and Warranties of Seller. To induce Purchasers to
enter into this First Amendment, Seller hereby represents and warrants as
follows:
(a) The Transaction Documents to which Seller is a party constitute
the legal, valid and binding agreements of Seller, are subject to no
defenses, counterclaims, rights of offset or recoupment and are enforceable
in accordance with their respective terms, except as 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.
(b) The representations and warranties contained in Section 6.01 of
the Receivables Purchase Agreement are true and correct as of the date
hereof as though made on and as of this date, except to the extent that
such representations and warranties relate solely to an earlier date.
(c) No event has occurred and is continuing or would result from the
execution and delivery of this First Amendment and the ancillary documents
contemplated hereby which constitutes or would constitute a default or an
event of default under the Receivables Purchase Agreement or any other
agreement, indenture, evidence of indebtedness or other obligation of
Seller.
3. Representation and Warranty of CHR. To induce Purchasers to enter
into this First Amendment, CHR hereby represents and warrants that the CHR
Support Agreement constitutes the legal, valid and binding agreement of CHR, is
subject to no defenses, counterclaims, rights of offset or recoupment and is
enforceable in accordance with its terms, except as 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.
4. Increase of Purchase Facility. Effective as of April 1, 1996,
assuming satisfaction of each condition precedent set forth in paragraph 7
hereof, the Facility Amount shall be deemed increased to Thirty-Six Million
Dollars ($36,000,000) and the definition of "Facility Amount" appearing in
Appendix A to
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the Receivables Purchase Agreement shall be deemed amended to read as follows:
"'Facility Amount' shall mean $36,000,000, or such higher amount as
may be established in accordance with Section 1.05(b)".
By signing this First Amendment, CHR hereby expressly acknowledges and consents
to increase of the Facility Amount to $36,000,000 as contemplated above.
5. Changes in Ownership Structure. Purchasers, the Administrator and
the Relationship Bank hereby consent to and approve ownership of Servicer,
Seller and related entities as follows: Seller will be a 100% wholly-owned
subsidiary of Cityside. Cityside will be a 100% wholly-owned subsidiary of
Cityside Holding Company. Cityside Holding Company will be a subsidiary of CHR
Financial Services, Inc., with CHR Financial Services, Inc. holding not less
than 90% of the issued and outstanding common stock of Cityside Holding Company.
Up to 10% of the remaining issued and outstanding common stock of Cityside
Holding Company, if not held by CHR Financial Services, Inc., may be held and
owned by past, present or future employees, executives and other parties related
to or otherwise affiliated with X.X. Xxxxxxxx, Inc., CHR Financial Services,
Inc., Cityside Holding Company, Cityside or Seller. CHR Financial Services, Inc.
will be a 100% wholly-owned subsidiary of X.X. Xxxxxxxx, Inc.
6. Amendments to Receivables Purchase Agreement and Support
Agreement. To permit the corporate reorganization contemplated in paragraph 5
above, the following amendments are hereby made to the Receivables Purchase
Agreement and CHR Support Agreement, respectively:
(a) The definition of "Change in Control" appearing on page A-4 of
Appendix A to the Receivables Purchase Agreement is hereby amended in its
entirety to read as follows:
"'Change in Control' means any of the following:
(a) The failure of Cityside to own free and clear of all liens,
100% of the issued and outstanding voting stock of Seller;
(b) The failure of Cityside Holding Company to own free and
clear of all liens, 100% of the issued and outstanding voting stock of
Cityside;
(c) The failure of CHR Financial Services, Inc. to own free and
clear of all liens, 90% or more of the issued and outstanding voting
stock of Cityside Holding
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Company, with the remaining issued and outstanding voting stock of Cityside
Holding Company being held only by past, present or future employees,
executives and other parties related to or otherwise affiliated with X.X.
Xxxxxxxx, CHR Financial Services, Inc., Cityside Holding Company, Cityside
or Seller;
(d) The failure of CHR to own (directly or through wholly-owned
subsidiaries of CHR), free and clear of all liens, 100% of the issued and
outstanding voting stock of CHR Financial Services, Inc.; or
(e) The creation or imposition of any lien on any shares of capital
stock of Seller or Servicer."
(b) Section 1 (c) of the Support Agreement is hereby amended in its
entirety to read as follows:
"(c) Ownership. The Support Party shall not cause, suffer to exist
or permit to occur a Change in Control as defined in the Receivables
Purchase Agreement."
7. Satisfaction of Conditions Under Section 1.05(a). In satisfaction of
the conditions to increase the Facility Amount set forth in Section 1.05(a) of
the Receivables Purchase Agreement:
(a) Purchasers, the Administrator and the Relationship Bank hereby
approve the requested increase in the Facility Amount to $36,000,000;
(b) The Administrator acknowledges receipt from Seller of written
notice requesting such increase not less than 30 days prior to the
effective date thereof;
(c) The Administrator has received written confirmation from Standard
and Poor's Rating Services and Xxxxx'x Investors Service, Inc. confirming
that the existing ratings on the Commercial Paper Notes will remain
unchanged after giving effect to the increase contemplated in paragraph 4;
(d) The Administrator, in its separate capacity as Liquidity Agent,
and Senior Purchaser hereby confirm that the maximum amount of purchase
commitments available to Senior Purchaser under the Liquidity Agreement has
been increased to $33,526,956.52, which is the appropriate amount of
increase in light of the proposed increase in the Facility Amount; and
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(e) Seller hereby acknowledges, confirms and agrees that it shall
pay, immediately upon demand, all out-of-pocket costs and expenses (including
all attorneys fees and expenses) incurred by the Administrator, the Relationship
Bank, the Liquidity Banks, either Purchaser, the Custodian and the Paying Agent
in connection with effecting the increase contemplated in paragraph 4 above.
8. Conditions Precedent. The increase in the Facility Amount
contemplated in paragraph 4 shall not become effective until the Relationship
Bank and the Administrator shall have received the following, in form and
substance satisfactory to them:
(a) This First Amendment, duly executed on behalf of each Party
hereto.
(b) Written confirmation from Standard & Poor's Rating Services and
Xxxxx'x Investors Service, Inc. confirming that the existing ratings on the
Commercial Paper Notes will remain unchanged after giving effect to the
increase in the Facility Amount contemplated in paragraph 4 above.
(c) An amendment to the Liquidity Agreement which shall (i) increase
the maximum amount of the purchase commitments thereunder to an amount not
less than $33,526,956.52, (ii) consent to this First Amendment and (iii)
otherwise provide for such amendments or modifications thereof as the
Parties shall agree, duly executed on behalf of each Party thereto.
(d) Amendments to the Senior Purchaser Interest Rate Agreement, State
Street Interest Rate Agreement and Servicer Interest Rate Agreement,
respectively, increasing the notional amount of each such agreement to an
amount not less than $32,869,565.22, duly executed on behalf of each Party
thereto.
9. Miscellaneous.
(a) Seller hereby reaffirms its agreement under Section 1.05(a) of the
Receivables Purchase Agreement to pay or reimburse the Parties therein
described, among other costs and expenses, for all expenses incurred by any such
Party in connection with the amendment, performance or enforcement of the
Transaction Documents, including without limitation, all reasonable fees and
disbursements of counsel to the Purchasers incurred in connection with
preparation of this First Amendment.
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(b) Except as expressly amended hereby, all provisions of the Transaction
Documents shall remain in full force and effect. After the effective date
hereof, each reference in any Transaction Document, or any other document
executed in connection with the Receivables Purchase Agreement, to "this
Agreement", "hereunder" or "hereof" or words of like import referring to the
Receivable Purchase Agreement or the CHR Support Agreement, respectively, shall
be deemed and refer to the Receivables Purchase Agreement or the CHR Support
Agreement, as the case may be, as amended hereby.
(c) This First Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one in the
same one and the same instrument.
(d) The execution of this First Amendment and acceptance of any documents
related hereto shall not be deemed a waiver of any Default or Event of Default
under any Transaction Document, whether or not existing on the date of this
First Amendment.
(e) This First Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the day and year first above mentioned.
CLIPPER RECEIVABLES
CORPORATION, the Company
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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STATE STREET BOSTON CAPITAL
CORPORATION, as Program
Administrator
By: /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
------------------------
Title: Vice President
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Percentage: NORWEST BANK MINNESOTA,
33.3334% NATIONAL ASSOCIATION, as
Liquidity Agent, Backup
Purchaser and Liquidity
Provider
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
Vice President
Percentage: FIRST BANK NATIONAL
33.3333% ASSOCIATION, as
Liquidity Provider
By: /s/ Xxxx X. XxXxxxxx
----------------------------
Xxxx X. XxXxxxxx
Vice President
[SIGNATURE PAGE 1 TO FIRST AMENDMENT TO
LIQUIDITY ASSET PURCHASE AGREEMENT]
Percentage: XXXXXX TRUST AND SAVINGS BANK,
33.3333% as Xxxxxx
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
Vice President
[SIGNATURE PAGE 2 TO FIRST AMENDMENT TO
LIQUIDITY ASSET PURCHASE AGREEMENT]
