Exhibit 99(b)
AMENDMENT NO. 5 TO VARIABLE FUNDING LOAN AGREEMENT AND
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED
CUSTODIAN/COLLATERAL AGENT AGREEMENT
AMENDMENT NO. 5 TO VARIABLE FUNDING LOAN AGREEMENT AND AMENDMENT NO. 2
TO SECOND AMENDED AND RESTATED CUSTODIAN/COLLATERAL AGENT AGREEMENT (this
"Amendment"), dated as of September 29, 1999, by and among MID-STATE TRUST V, as
Borrower (the "Borrower"), ENTERPRISE FUNDING CORPORATION, as Lender (the
"Lender"), FIRST UNION NATIONAL BANK, as Collateral Agent (the "Collateral
Agent"), CAPITAL MARKETS ASSURANCE CORPORATION, as Surety Provider (the "Surety
Provider") and Bank of America, N.A., as successor by merger to NationsBank,
N.A., as Administrative Agent (the "Administrative Agent").
Capitalized terms used and not defined in this Amendment shall have the
meanings given such terms in the Variable Funding Loan Agreement, dated as of
March 3, 1995, among the parties hereto, as amended from time to time (as so
amended, the "Loan Agreement").
PRELIMINARY STATEMENTS
WHEREAS, certain of the parties hereto are party to the Loan Agreement
and the Second Amended and Restated Custodian/Collateral Agent Agreement, dated
as of March 29, 1996, among the Collateral Agent, the Lender, the Borrower, the
Administrative Agent and the Surety Provider, as amended from time to time (as
so amended, the "CCA Agreement"); and
WHEREAS, the parties hereto wish to amend certain terms of the Loan
Agreement and certain terms of the CCA Agreement, as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, in the Loan Agreement and in the CCA Agreement, and other good and
valuable consideration, the receipt and adequacy of which is hereby expressly
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
SECTION 1. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
(a) Section 6.1 thereof is hereby amended by:
(i) adding the following language at the end of
clause (l) thereof after the word "thereafter": "; provided,
HOWEVER, that no Event of Default shall be deemed to have
occurred under this clause (l) during any of the six (6)
Collection Periods following a Take-Out by reason of the
Collections Coverage Ratio being less than the applicable
percentage set forth above for any of such six Collection
Periods and PROVIDED, FURTHER, that the Collections Coverage
Ratio (A) with respect to the seventh Collection Period
following any Take-Out, shall be the Collections Coverage
Ratio solely for such Collection Period and (B) with respect
to the eighth Collection Period following any Take-Out, shall
be the average of the Collections Coverage Ratio for the
seventh and eighth Collection Periods following such
Take-Out"; and
(ii) adding the following new clause (r) at the end
thereof: "(r) For any of the first six (6) Remittance Dates
following a Take-Out, the amount on deposit in the Reserve
Account shall fail to be equal to or greater than the sum of
(i) the Scheduled Reserve Account Payment for such Remittance
Date and (ii) $1,000,000."
(b) Annex A thereto is hereby amended by:
(i) changing "$125,000" in clause (u) of the
definition of "ELIGIBLE ACCOUNT" to "$150,000";
(ii) changing "2%" in clause (u) of the definition of
"ELIGIBLE ACCOUNT" to "10%";
(iii) changing "Outstanding Balance" in clause (u) of
the definition of "ELIGIBLE ACCOUNT" to "Economic Balance";
(iv) deleting the following language from clause (aa)
of the definition of "ELIGIBLE ACCOUNT": "with respect to any
Account originated by an Eligible Originator, the amount
thereof, together with the amount of all other outstanding
Accounts of such Eligible Originator purchased under the DAT
Agreement, would not represent greater than 3% of the
Borrowing Base, and (ii)";
(v) adding following new clause (bb) to the
definition of "ELIGIBLE ACCOUNT" before the period at the end
thereof: "(bb) with respect to any Account originated by an
Eligible Originator (i) such Account was originated subsequent
to the date the related Eligible Originator was acquired by
the Originator or Xxxxxx Industries, Inc. and (ii) such
Account was originated in accordance with the Credit and
Collection Policy";
(vi) adding the following new definition after the
definition of "HOLDING ACCOUNT": "INCREMENTAL AMOUNT" shall
have the meaning given such term in Section 4.1(d)(vi) of the
CCA Agreement.";
(vii) changing "$400,000,000" in the definition of
"MAXIMUM NET INVESTMENT" to "$500,000,000";
(viii) changing "clause (i)" in the definition of
"SCHEDULED RESERVE ACCOUNT PAYMENT" to "clauses (i) through
(v)"; and
(ix) changing "September 29, 1999" in the definition
of "SCHEDULED TERMINATION DATE" to "September 27, 2000".
SECTION 2. AMENDMENT TO CCA AGREEMENT. The CCA Agreement is hereby
amended as follows: Section 4.1(d) (vi) is hereby amended by adding the
following proviso at the end thereof: "; PROVIDED, HOWEVER, that following a
Take-Out, the amount to be deposited pursuant to this clause SIXTH shall be
equal to (i) for the first Remittance Date following a Take-Out, the
Scheduled Reserve Account Payment for such Remittance Date plus an amount (the
"Incremental Amount") equal to $1,000,000 and (ii) for each of the next five (5)
Remittance Dates thereafter, the Scheduled Reserve Account Payment for such
Remittance Date plus $1,000,000 (after giving effect to the Incremental Amount
deposited on any Remittance Date preceding such Remittance Date but after the
related Take-Out).
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective on and as of the date on which all parties hereto have executed this
Amendment and delivered their signature pages hereto to the Administrative Agent
and the Lender shall have received the following, each of which shall be in form
and satisfactory to the Lender:
(a) An endorsement (the "Endorsement")to the Surety Bond
issued by the Surety Bond Provider, dated July 31, 1997 duly executed
by the Surety Bond Provider, dated the date hereof, in the form
attached hereto as Exhibit A;
(b) An opinion of counsel to the Surety Provider regarding the
enforceability of the Surety Bond as modified by the Endorsement;
(c) A new Variable Funding Note in the form of Exhibit B
attached hereto, executed by the Trust;
(d) Schedule A to the Depositor Account Transfer Agreement
signed by each of Dream Homes, Inc. and Dream Homes USA, Inc.;
(e) Opinions of counsel to Dream Homes, Inc. and Dream Homes
USA, Inc. with respect to (A) the enforceability of the Amended and
Restated DAT Agreement against each thereof and (B) the creation and
perfection of a security interest by each such Eligible Originator in
the Accounts and the Account Documents created under the DAT Agreement
in favor of the Depositor;
(f) A copy of Amendment No. 1 to the Amended and Restated DAT
Agreement, dated the date hereof and duly executed by the parties
thereto; and
(g) Copies of proper financing statements (Form UCC-1) with
respect to each of Dream Homes, Inc. and Dream Homes, USA, naming Dream
Homes, Inc. or Dream Homes, USA, as the case may be, as debtor/seller
in favor of the Depositor as secured party/purchaser, each for the
benefit of the Borrower as assignee of the secured party/purchaser.
SECTION 4. SEVERABILITY OF PROVISIONS. Any provision of this Amendment
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 5. CAPTIONS. The captions in this Amendment are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 6. AGREEMENTS TO REMAIN IN FULL FORCE AND EFFECT. Except as
amended hereby, each of the Loan Agreement and the CCA Agreement shall remain in
full force and effect and is hereby ratified, adopted and confirmed in all
respects. All references in the Loan Agreement or the CCA Agreement, as the case
may be, to "herein," or words of like import, and
all references to the Loan Agreement or the CCA Agreement, as the case may be,
in any agreement or document shall hereafter be deemed to refer to the Loan
Agreement or the CCA Agreement, as the case may be, as amended hereby.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same amendment.
SECTION 9. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Amendment is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
trustee of the Trust, in the exercise of the powers and authority conferred and
vested in it under the Trust Agreement, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose of binding
only the Trust and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Amendment.
SECTION 10. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
certifies that (i) the representations and warranties made by it in Section 3.1
of the Loan Agreement are true and correct as of the date hereof, as though made
on and as of the date hereof and (ii) as of the date hereof, there is no Event
of Default or event which, with the passage of time of the giving of notice,
could result in an Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
MID-STATE TRUST V
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/ X. XXXXXX
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Name: Xxxxxxxxx Xxxxxx
Title: Financial Services Officer
ENTERPRISE FUNDING CORPORATION
By: /s/ X. X. XXXXX
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Principal
FIRST UNION NATIONAL BANK,
AS COLLATERAL AGENT
By: /s/ X. XXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Capital Markets Assurance
Corporation hereby consents to
the foregoing amendment by the
execution hereof:
CAPITAL MARKETS ASSURANCE
CORPORATION
By: /s/ XXXXXXXX XXXXXXX
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Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
Date:
