EX-10.4 5 0005.txt FIRST AMENDMENT TO SERIES 1997-1 VARIABLE FUNDING SUPPLEMENT THIS FIRST AMENDMENT TO SERIES 1997-1 VARIABLE FUNDING SUPPLEMENT (this "Amendment"), dated as of June 19, 2000, is entered into by and among PRIME II RECEIVABLES CORPORATION (the "Transferor"), FDS NATIONAL BANK (the "Servicer"), and THE CHASE MANHATTAN BANK (the "Trustee"). RECITALS WHEREAS, the Transferor, the Servicer and the Trustee are parties to that certain Series 1997-1 Variable Funding Supplement, dated as of January 22, 1997 (as amended, supplemented or otherwise modified from time to time, the "Supplement") to the Pooling and Serving Agreement, dated as of January 22, 1997, among the Transferor, the Servicer and the Trustee (as amended, supplemented or otherwise modified from time to time, the "Agreement"); and WHEREAS, the parties hereto desire to amend the Supplement 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. Certain Defined Terms. Capitalized terms that are used herein without definition and that are defined in the Supplement shall have the same meanings herein as therein defined. 2. Amendments to Agreement. (a) Section 2 of the Supplement is hereby amended by inserting the following definitions in their alphabetically determined places: "`AAA Reserve Account Trigger' shall mean, with respect to any Determination Date (i) the Payment Rate Percentage for the Monthly Period immediately preceding such Determination Date being less than 18%, (ii) the Delinquency Ratio for the Monthly Period immediately preceding such Determination Date being greater than 5%, or (iii) the Charge Off Ratio for the Monthly Period immediately preceding such Determination Date being greater than 10%. `Automatic Addition Percentage' shall mean for any date of determination (i) if an AAA Reserve Account Trigger has occurred and is continuing on such date of determination, 2.0%, and (ii) on any other date of determination, 0.0%; provided, that if a Reserve Account Increase Notice shall have been delivered and an AAA Reserve Account Trigger has occurred and is continuing, the Automatic Addition Percentage shall not exceed 100% minus the Enhancement Percentage then in effect. `Charge Off Ratio' shall mean, with respect to any Monthly Period, the annualized percentage equivalent of a fraction, the numerator of which is the Investor Default Amount for such Monthly Period and the denominator of which is the average daily Invested Amount during such Monthly Period. `Delinquency Ratio' shall mean, with respect to any Monthly Period, the percentage equivalent of a fraction, the numerator of which is the aggregate amount of all Receivables that were more than 60 days past due as of the end of each billing cycle during such Monthly Period and the denominator of which is the aggregate amount of all Receivables as of the end of each billing cycle during such Monthly Period." (b) The definition of Required Reserve Amount in Section 2 of the Supplement is hereby amended and restated in its entirety to read as follows: "`Required Reserve Amount' shall mean, with respect to any Business Day, the product of (i) the sum of (A) Automatic Addition Percentage for such Business Day, and (B) the Enhancement Percentage for such Business Day, times (ii) during the Revolving Period, the Invested Amount on such Business Day or, during the Amortization Period, the Invested Amount on the last day of the Revolving Period; provided that during the Amortization Period, the Required Reserve Amount on any Business Day shall not exceed the Invested Amount on such Business Day." (c) Section 4.9(a) of the Agreement is hereby amended by adding the following sentence at the end of such Section: "Notwithstanding any other provision of this Agreement, the Transferor may at any time and from time to time in the Transferor's discretion deposit funds directly into the Reserve Account." (d) Section 5.2(ix) of the Agreement is hereby amended and restated in its entirety to read as follows: "(ix) the Excess Spread Percentage, the Excess Spread Enhancement Cap Percentage, the Payment Rate Percentage, the Payment Rate Enhancement Cap Percentage, the Enhancement Percentage, the Charge Off Ratio, the Delinquency Ratio and the Automatic Addition Percentage for the related Monthly Period;" (e) Section 17 of the Agreement is hereby amended and restated in its entirety to read as follows: "Automatic Additional Accounts. The Transferor shall not elect to terminate or suspend the inclusion of Automatic Additional Accounts without the prior written consent of the Administrative Agent acting on behalf of the Holders of Series 1997-1 Variable Funding Certificates as provided in Section 19 of this Variable Funding Supplement; provided, that if, on any Distribution Date immediately following a Determination Date on which an AAA Reserve Account Trigger occurred, the amount on deposit in the Reserve Account (without giving effect to any amounts deposited therein as a result of the Enhancement Percentage being greater than zero on such Determination Date) is less than the product of (i) the Automatic Addition Percentage on such Distribution Date, times (ii) during the Revolving Period, the Invested Amount on such Distribution Date or, during the Amortization Period, the Invested Amount on the last day of the Revolving Period (a "Suspension Event"), the Transferor will, in accordance with Section 2.6 of the Agreement, declare a Suspension Date; provided, further, that, if either (x) on any subsequent day the amount on deposit in the Reserve Account (without giving effect to any amounts deposited therein as a result of the Enhancement Percentage being greater than zero) is at least equal to the product of clauses (i) and (ii) above, or (y) on any subsequent Determination Date no AAA Reserve Account Trigger is continuing, the Transferor may, in its sole discretion, declare a Resumption Date." 3. Representations and Warranties. The Transferor and the Servicer each hereby represents and warrants as follows: (a) Representations and Warranties. The representations and warranties contained in Section 4 of the Class A Certificate Purchase Agreement and the Class B Certificate Purchase Agreement are true and correct as of the date hereof. (b) No Default. Both before and immediately after giving effect to this Amendment and the transactions contemplated hereby no Termination Event, Series 1997-1 Pay Out Event, Servicer Default or Trust Payout Event exists or shall exist. 4. Effect of Amendment. All provisions of the Supplement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Supplement (or in any related document) to "this Supplement", "hereof', "herein" or words of similar effect referring to the Supplement shall be deemed to be references to the Supplement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement other than as set forth herein. 5. Effectiveness. This Amendment shall become effective as of the date hereof upon receipt by the Agent of counterparts of this Amendment (whether by facsimile or otherwise) executed by each of the other parties hereto, in form and substance satisfactory to the Agent in its sole discretion. 6. Consent of Holder of Class C Certificates. The Transferor, in its capacity as holder of all of the outstanding Class C Certificates (as defined in the Supplement), by its execution below hereby consents to the terms of this Amendment and the changes to the Agreement or the Supplement contemplated hereby. 7. 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. 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York (without regard to any otherwise applicable principles of conflicts of law). 9. 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. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. PRIME II RECEIVABLES CORPORATION, as Transferor By: /s/ Susan P. Storer Name: Susan P. Storer Title: President FDS NATIONAL BANK, as Servicer By: /s/ Susan R. Robinson Name: Susan R. Robinson Title: Treasurer THE CHASE MANHATTAN BANK, as Trustee By: /s/ Jennifer Richardson Name: Jennifer Richardson Title: Assistant Vice President The undersigned, as Administrative Agent, hereby consents to the Transferor's declaration of Suspension Dates from time to time pursuant to Section 17 of the Agreement as set forth above in this Amendment. CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as Administrative Agent By: /s/ Michael W. Koenitzer Name: Michael W. Koenitzer Title: Vice President By: /s/ Matthew J. Monaco Name: Matthew J. Monaco Title: Associate