EXHIBIT 10.ii
FIRST AMENDMENT TO
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
THIS FIRST AMENDMENT TO RECEIVABLES PURCHASE AND SERVICING AGREEMENT,
dated April 2, 1998, is entered into by and among LLAMA RETAIL FUNDING, L.P., as
Purchaser, CAPITAL USA, L.L.C., as Administrative Agent, SUNBEAM ASSET
DIVERSIFICATION, INC., as Seller, and SUNBEAM PRODUCTS, INC., as Servicer.
Capitalized terms used but not otherwise defined herein shall have the meaning
given to such terms in the Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Receivables
Purchase and Servicing Agreement, dated as of December 4, 1997 (the
"AGREEMENT"); and
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein;
NOW THEREFORE, in consideration of the promises and other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) Sections 10.9(a) and (b) are hereby amended and
restated to read in their entirety as follows:
"(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
(b) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED
IN NEW YORK CITY, NEW YORK, AND EACH WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE
ADDRESSES SET FORTH ON THE ATTACHED SCHEDULE 3, AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME
SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 10.9(B)
SHALL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
ANY SUCH PARTY'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN
THE COURTS OF ANY OTHER JURISDICTION."
SECTION 2. 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 3. 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.
(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 Agreement may not be amended or otherwise
modified except as provided in this Agreement.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
[Remainder of Page Intentionally Left Blank]
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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 written above.
SUNBEAM ASSET DIVERSIFICATION, INC.,
as Seller
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
LLAMA RETAIL FUNDING, L.P.,
as Purchaser,
By Llama Retail Funding Corp.,
its general partner
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SUNBEAM PRODUCTS, INC.,
individually and as Servicer
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
CAPITAL USA, L.L.C.,
as Administrative Agent
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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