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EXHIBIT 4.19(b)
FOURTH AMENDMENT TO
POOLING AND SERVICING AGREEMENT
THIS FOURTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
August 16, 2000 (this "Amendment"), is entered into among GAYLORD RECEIVABLES
CORPORATION, a Delaware corporation ("GRC"), as the Transferor, GAYLORD
CONTAINER CORPORATION, a Delaware corporation ("Gaylord"), as the initial
Servicer, and MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation, as the Trustee.
RECITALS:
WHEREAS, GRC, Gaylord and the Trustee are parties to the Pooling and
Servicing Agreement dated as of September 24, 1993, as amended prior to the date
hereof (as so amended, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein have
the meaning set forth in Appendix A to the Agreement.
2. Section 3.02(b) of the Agreement is hereby amended by adding the
following sentence to the end of clause (b):
Notwithstanding the foregoing, with respect to Receivables
originated by the S&G Packaging Division, the Servicer shall not be
required to cause the Collections in respect of such Receivables to be
deposited into the Bank Accounts and the Trust Accounts pursuant to the
terms and provisions of Section 3.03 and Article IV prior to March 31,
2001 unless such Receivables shall have been characterized as Eligible
Receivables for purposes of calculating the Base Amount.
3. The first sentence of Section 3.07 of the Agreement is hereby
amended and restated in its entirety as follows:
On or before June 30 of each calendar year, beginning with June
30, 2001 the Servicer shall, as an expense of the Servicer paid out of
the Servicing Fee, cause Deloitte & Touche or another firm of
nationally recognized independent public accountants (which may
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also render other services to the Servicer, the Seller or GRC) that is
reasonably acceptable to the Trustee to furnish a report to the
Trustee, the Servicer, S&P and GRC (which report shall be addressed to
the Trustee and shall relate to the one year period ending in the
previous March fiscal month end); provided that, after the commencement
of the Liquidation Period as a result of (i) the declaration of the
Liquidation Commencement Date pursuant to Section 9.01 (other than as a
result of the occurrence and continuance of any of the Liquidation
Events specified hereinafter in subclause (ii)), (ii) the occurrence of
a Liquidation Event pursuant to Section 9.01(a), (d), (e), (l), or (o)
or (iii) the occurrence of the event described in clause (e) of the
definition of "Liquidation Commencement Date," the Majority Investors
may direct the Trustee to replace the firm of nationally recognized
independent public accountants that the Servicer has selected to
provide the report described in this Section 3.07 with another firm of
nationally recognized certified public accountants selected by the
Trustee.
4. Section 4.03(f) of the Agreement is hereby amended by amending and
restating clauses First and Second, respectively, in their entirety as follows:
First, to the Carrying Cost Account until the amount allocated to
the Carrying Cost Account equals the Carrying Cost Reserve, except
that: (i) with respect to any Settlement Date, the amount allocated
pursuant to this clause First in respect of the Servicing Fees shall
not exceed the Servicing Fee Base Amount, and (ii) with respect to all
Settlement Dates occurring in any calendar year, the aggregate amount
allocated pursuant to this clause First in respect of Accrued Carrying
Costs, other than the Servicing Fee Base Amount, Series Fee Amounts and
interest on the Investor Certificates, shall not exceed $100,000.
Second, to the Defeasance Account in respect of any repayment or
any full or partial prepayment of the aggregate Ratable Principal
Amount of any series of Investor Certificates which is to be made
during a Pay-Out Period; provided that, if Pay-Out Periods commence
with respect to more than one series of Investor Certificates as a
result of the same Liquidation Event but the commencement dates of such
Pay-Out Periods differ, funds shall be allocated to the Defeasance
Account with respect to each such series on the basis of the Ratable
Principal Amounts of each such series as of the first such commencement
date; provided, further, that the aggregate amount of funds allocated
to the Defeasance Account pursuant to this clause Second and clause
Fifth below on any day shall not exceed the aggregate amount of funds
that would have been allocated to the Investor Certificates on such day
if the Liquidation Period were then in effect and the Liquidation
Commencement Date for such Liquidation Period occurred on a day that
was the Pay-Out Period Commencement Date with respect to such series of
Investor Certificates.
5. Section 4.03(f) of the Agreement is hereby amended by amending and
restating clause Seventh in its entirety as follows:
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Seventh, to fund or pay (i) the Carrying Cost Account until the
amount allocated to the Carrying Cost Account equals the Carrying Cost
Reserve, (ii) other accrued and unpaid expenses of the Program
including, without limitation, indemnification payments required to be
made under the Transaction Documents, and (iii) all interest, if any,
that is required to be paid on such Business Day pursuant to Section
5.01(g); and
6. Section 4.03(g) of the Agreement is hereby amended by amending and
restating clauses First , Second, and Six, respectively, as follows:
First, to pay Accrued Carrying Costs (other than the Servicing
Fee), except that, with respect to all Settlement Dates in any calendar
year, the aggregate amount allocated pursuant to this clause First and
clause First of Section 4.03(f) in respect of Accrued Carrying Costs
other than Servicing Fee Base Amount, the Series Fee Amounts and
interest on Investor Certificates shall not exceed $100,000;
Second, to pay to the Servicer, at the times specified in Section
3.04, the then accrued and unpaid Servicing Fee if a GCC Person is not
the Servicer, provided, however, that if a GCC Person is the Servicer,
then the amount to be allocated to pay the Servicing Fee pursuant to
this clause Second shall equal only the portion of the Servicing Fee to
be paid to Persons who are not GCC Persons (including, without
limitation, the Trustee); and provided, further that with respect to
any Settlement Date the amount allocated pursuant to this clause Second
shall not exceed the Servicing Fee Base Amount;
Sixth, to the extent not paid pursuant to clauses First or Second
above, to pay, in the following order of priority, (i) the accrued and
unpaid Servicing Fee payable to a Person other than a GCC Person, (ii)
other accrued and unpaid expenses of the Program (including, without
limitation, indemnification payments to be made under the Transaction
Documents, (iii) all interest, if any, that is required to be paid on
such day pursuant to Section 5.01(g); (iv) any other costs and expenses
constituting the Carrying Costs; and (v) the accrued and unpaid
Servicing Fee payable to Servicer that is a GCC Person.
7. Section 7.02 (l) of the Agreement is hereby amended by amending
clause (C) thereof as follows:
(C) no other amendment or modification of, or supplement to, the
Amendment Approval Documents which has been approved by S&P shall be
effective unless the Series Majority Investors of each series of
Investor Certificates shall have given prior written consent to such
amendment, modification or supplement;
8. Section 7.02 (n) of the Agreement is hereby amended by amending
clause (D) thereof as follows:
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(D) secured and unsecured indebtedness and other obligations to
its Affiliates that are subject to subordination terms substantially
similar to the subordination terms of the GRC Note,
9. Section 8.02 (d) of the Agreement is hereby amended by amending
clause (iii) thereof as follows:
(iii) no other amendment or modification of, or supplement to, the
Amendment Approval Documents which has been approved by S&P shall be
effective unless the Series Majority Investors of each series of
Investor Certificates shall have given prior written consent to such
amendment, modification or supplement;
10. Section 9.01(d) of the Agreement is hereby amended and restated in
its entirety as follows:
(d) an Event of Bankruptcy shall occur with respect to GRC or the
Seller, or GRC shall become unable for any reason to transfer
Receivables or Related Transferred Assets to the Trust in accordance
with the provisions of this Agreement, provided that if, at any time
prior to the Liquidation Commencement Date, a Liquidation Event occurs
pursuant to this Section 9.01(d) as a result of an involuntary
bankruptcy proceeding being filed against the Seller, then,
notwithstanding anything to the contrary in this Section 9.01(d) or in
the definition of "Liquidation Commencement Date," on and after the day
on which such an involuntary bankruptcy proceeding is filed, GRC shall
cease to purchase Receivables and the Related Purchased Assets from the
Seller and to transfer Receivables and Related Transferred Assets to
the Trust; provided that GRC may resume such purchases and transfers
if, within ten days after any such filing, (i) GRC or the Seller shall
have obtained an order from the court conducting such involuntary
bankruptcy proceeding (A) authorizing the Seller to continue to make
sales of Receivables and Related Assets to GRC and (B) confirming that
such sales, and any security interest related thereto, will not be
voidable as a postpetition transaction under Section 549 of the
Bankruptcy Code or in any other similar proceedings, and (ii) counsel
to the Seller and to GRC shall have reaffirmed the conclusions in the
opinions delivered pursuant to Section 4.1(j)(i) of the Purchase
Agreement, which reaffirmation shall be reasonably acceptable to the
Trustee, S&P and the Required Investors;
11. Section 9.01 of the Agreement is hereby amended by: (i) deleting
the word "or" at the end of clause (n), and (ii) adding clauses (p) and (q),
respectively, as follows:
(p) the Settlement Statement delivered on any Report Date shall
show that, as of the immediately preceding Cut-Off Date, the Average
Dilution Ratio, for both (i) the period of the most recent three
consecutive Calculation Periods ending on such Cut-Off Date and (ii)
the period of three consecutive Calculation Periods which immediately
preceded the three Calculation Periods in subclause (i), exceeded 7.5%;
or
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(q) the Settlement Statement delivered on any Report Date shall
show that, as of the immediately preceding Cut-Off Date, the Average
Days Sales Outstanding, for both (i) the period of the most recent
three consecutive Calculation Periods ending on such Cut-Off Date and
(ii) the period of three consecutive Calculation Periods which
immediately preceded the three Calculation Periods in subclause (i),
exceeded 55 days,
12. The text of Section 9.01 of the Agreement immediately following
clause (q) thereof is hereby amended by deleting the reference (in the third
line thereof) to "clause (o)", and substituting therefor a reference to "clause
(q)", so that the surrounding text reads as follows:
then, (i) upon the occurrence and continuance of any event described in
subsections (b), (c), (f) through (k) and (m) through (q) above,
13. Section 9.01 of the Agreement is hereby further amended by amending
and restating the second full paragraph following clause (q) in its entirety as
follows:
The Liquidation Commencement Date shall occur on the first
Business Day on which the Seller has knowledge of the occurrence of an
event described in subsection (k) above (if such event is then
continuing), if (x) the Trust Assets are subject to an Adverse Claim
that has priority over the interest of the Trustee, and the obligations
secured or supported by such Adverse Claim exceed $2,000,000 in the
aggregate, or (y) the Trustee ceases to have a valid perfected interest
in Receivables in an aggregate amount exceeding $2,000,000, in each
case, without any notice or other action on the part of the Trustee or
the Investor Certificateholders, unless the Required Investors shall
have waived the occurrence of such event,
14. The following section is added to Article XIII of the Agreement:
Section 13.21 Additional Information to S&P. Without limiting
anything provided in this Agreement, the Trustee shall provide or cause
to be provided to S&P any other information that may be requested by
S&P and that is in the possession of the Trustee (including, without
limitation, Daily Reports and Settlement Statements) in connection with
the transactions contemplated by the Transaction Documents. The
Transferor and the Servicer hereby consent to any and all such
disclosures and agree to promptly reimburse the Trustee for its costs
in connection therewith.
15. Section 13.05(c) of the Agreement is hereby amended and restated in
its entirety as follows:
(1) in the case of S&P, to 55 Water Street, New York City, New
York 10041;
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16. The definitions of "Class A-RI Certificate" and "Discount Rate
Reserve" set forth in Appendix A to the Agreement are hereby amended and
restated in their entirety as follows:
"Class A-RI Certificate" means each Revolving Certificate which is
designated as such and which represents a right to receive a variable
principal amount, bears interest at a Class A-RI Certificate Rate, is
executed by GRC and authenticated by or on behalf of the Trustee, and
is substantially in the form of an exhibit to the Supplemental Issuance
Agreement pursuant to which such series of Revolving Certificates is
issued.
"Discount Rate Reserve" means, at any time, an amount equal to the
sum of (in each case, without duplication):
(a) (i) the accrued and unpaid Carrying Costs as set forth in the
then-effective Settlement Statement, plus (ii) the amount of Carrying
Costs (other than Servicing Fees) that will, or are estimated to, have
accrued by the next Settlement Date, as set forth in the then-effective
Settlement Statement, plus
(b) the Servicing Fee Reserve, as set forth in the then effective
Settlement Statement, plus
(c) an amount equal to (i) the Investor Invested Amount, times
(ii) the weighted average of the interest rates per annum applicable to
each series of Investor Certificates, in the case of each of the
foregoing, as of the most recent Cut-Off Date times (iii) 25.0%, minus
(d) the portion of the aggregate balance in the Master Collection
Account that is allocated to the Carrying Cost Account as of such time.
17. The definition of "Excess Concentration Balance" set forth in
Appendix A to the Agreement is hereby amended by replacing clause (d) thereof
with the following:
(d) 3% for any one (1) other Obligor and 2% for each other Obligor
that, in each case, is not an Obligor provided in clauses (a), (b) or
(c) above.
18. Each of the following definitions is hereby added, alphabetically,
to Appendix A to the Agreement:
"Average Days Sales Outstanding" means any period (expressed in a
number of days) calculated as: (i) the average of the aggregate Unpaid
Balance of all Receivables as of the applicable Cut-Off Date for each
of the three immediately preceding Calculation Periods, multiplied by
(ii) 91, divided by (iii) the aggregate amount of invoices giving rise
to Receivables generated during the immediately preceding three
Calculation Periods.
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"Average Dilution Ratio" means, for any three consecutive
Calculation Periods, a ratio equal to the sum of the Dilution Ratios
shown on the Settlement Statement for each such Calculation Period
divided by 3.
"Authenticating Agent" means the Trustee or any other
authenticating agent appointed by the Trustee pursuant to Section
6.11(a) of the Pooling and Servicing Agreement.
"Series Fee Amount" means, (i) for Series 2000-1 A-RI
Certificates, the aggregate amount of fees set forth in the Collateral
Agent Fee Letter and the Facility Agent Fee Letter (as each such term
is defined in the Amended and Restated Credit Agreement entered into in
connection with Series 2000-1 Certificates), and (ii) for any other
series of Certificates, the amount of regularly scheduled monthly or
annual fees payable to the Trustee, or any agent for direct or indirect
investors in, or lenders secured by, such Certificates pursuant to this
Agreement, the applicable Supplemental Issuance Agreement or any
related agreement; it being understood that extraordinary fees,
expenses or indemnity obligations are not included in the Series Fee
Amount but may be included in Accrued Carrying Costs.
"Series Majority Investors" means, with respect to any series of
Investor Certificates, the Holders of such series of Investor
Certificates that evidence an aggregate principal amount of more than
50% of the aggregate outstanding principal amount of such series of the
Investor Certificates.
"Servicing Fee Base Amount", with respect to any Settlement Date,
the portion of the Carrying Cost Reserve that would be attributable to
the Servicing Fees if the Servicing Fees for any Calculation Period
were equal to one-twelfth of the product of (a) 2.0% and (b) the
aggregate Unpaid Balance of the Receivables measured on the first
Business Day of the most recently ended Calculation Period.
"Servicing Fee Excess" means, for any Calculation Period, the
excess (if any) of (x) Servicing Fee for such period over (y) the
Servicing Fee Base Amount for such period.
"Servicing Fee Reserve" means, Servicing Fees that will, or are
estimated to, have accrued by the Specified Date.
"Specified Date" means, with respect to any date of determination,
the date following the date of such determination that is 2 times the
Average Days Sales Outstanding as shown in the then most recent
Settlement Statement.
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19. Representations and Warranties. Each of GRC and Gaylord
(individually and as the Servicer) hereby represents and warrants to the Trustee
as follows:
(a) Enforceability. The execution and delivery by it of this
Amendment, and the performance of its obligations under this Amendment and the
Agreement, as amended hereby, are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. The Agreement (as
amended hereby) is its valid and legally binding obligations, 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.
(b) No Default. Both before and immediately after giving effect to
this Amendment, no Liquidation Event or Unmatured Liquidation Event exists or
shall exist.
20. Effect of Amendment. All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect.
After this Amendment becomes effective, all references in the Agreement (or in
any other Transaction Document) to this Agreement shall be deemed to be
references to this Agreement as amended hereby.
21. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
22. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of New York.
23. Section Headings. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or interpretation
of this Amendment, the Agreement or any provision hereof or thereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
GAYLORD RECEIVABLES CORPORATION,
as the Transferor
By:
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Name:
Title:
GAYLORD CONTAINER CORPORATION,
as initial Servicer
By:
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Name:
Title:
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MANUFACTURERS AND TRADERS TRUST
COMPANY, as the Trustee
By:
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Name:
Title:
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