Third Amendment to Series 2018-Three Indenture Supplement for Perimeter Master Note Business Trust, dated January 23, 2020
CERTAIN INFORMATION, IDENTIFIED BY [*****], HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.
THIRD AMENDMENT TO
THE SERIES 2018-THREE INDENTURE SUPPLEMENT
This Third Amendment to the Series 2018-Three Indenture Supplement (the “Amendment”), dated as of January 23, 2020, among Perimeter Master Note Business Trust, a business trust organized and existing under the laws of the State of Nevada (herein, the “Issuer” or the “Trust”), Access Financing, LLC, a Georgia limited liability company (the “Servicer”) and U.S. Bank National Association, not in its individual capacity, but solely as Indenture Trustee (herein, together with its successors in the trusts thereunder as provided in the Indenture referred to below, the “Indenture Trustee”) under the Master Indenture, dated as of February 8, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Indenture”) among the Issuer, the Servicer and the Indenture Trustee.
Capitalized terms used herein shall have the meanings assigned to such terms in the Supplement (as defined below).
WHEREAS, the Issuer, the Servicer and the Indenture Trustee executed the Series 2018-Three Indenture Supplement, dated as November 16, 2018, the First Amendment to the Series 2018-Three Indenture Supplement, dated as of October 9, 2019 and the Second Amendment to the Series 2018-Three Indenture Supplement, dated as of November 13, 2019 (as so amended, the “Supplement”); and
WHEREAS, the parties hereto have agreed to amend the Supplement on the terms and conditions hereinafter set forth in accordance with Section 9.02 of the Indenture;
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Amendments of the Supplement.
1.1 The Supplement is hereby amended as follows:
(a) The definitions of “Commitment Termination Date” and “Target Proceeds Amount” are hereby deleted in their entirety and replaced with the following:
“Commitment Termination Date” shall mean the earliest to occur of (i) the Stated Maturity Date and (ii) the date on which an Early Redemption Event has occurred.
“Target Proceeds Amount” shall have the meaning specified in the Class A Purchase Agreement.
(b) Section 4.05(a) of the Supplement is amended hereby by deleting paragraph (xi) in its entirety and inserting the following in its place:
(c) Section 4.05(a) of the Supplement is further amended hereby by deleting paragraph (xiv) in its entirety and inserting the following in its place:
(xiv) the balance of such Available Funds (“Excess Collections”) shall be distributed to the Issuer and applied in accordance with the Trust Agreement.
(d) Section 5.01(l) of the Supplement is amended hereby by deleting it in its entirety and inserting the following in its place:
(l) On each Distribution Date, the Paying Agent, solely in accordance with the Monthly Servicer Statement, shall distribute to each of the Servicer, Backup Servicer, Owner Trustee and Indenture Trustee such amounts held by the Paying Agent that are allocated and available on such Distribution Date to pay the Servicing Fee, the Backup Servicing Fee, the Program Fees and the Program Expenses, respectively.
(e) Section 6.01(g) of the Supplement is amended hereby by deleting paragraph (ii) in in its entirety and inserting the following in its place:
(ii) the Three-Month Delinquency Ratio exceeds [*****]%;
SECTION 2. Miscellaneous
2.1 Ratification. As amended hereby, the Supplement is in all respects ratified and confirmed and the Supplement as so supplemented by this Amendment shall be read, taken and construed as one and the same instrument.
2.2 Counterparts. This Amendment may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
2.3 Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW).
2.4 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
2.5 Effectiveness. This Amendment shall be effective as of the date first above written.
2.6 Limitation of Liability. It is expressly understood and agreed by the parties hereto that (a) this Amendment is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as trustee of the Issuer, 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 Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust, National Association, but is made and intended for the purpose of binding only the Issuer and (c) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Amendment or the other Transaction Documents to which the Issuer is a party.
2.7 Representation and Warranty. Each of the parties hereto represents and warrants that this Amendment has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
PERIMETER MASTER NOTE
BUSINESS TRUST, as Issuer
Wilmington Trust, National Association,
capacity, but solely as
/s/ Nancy E. Hagner
Name: Nancy E. Hagner
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
|By:||/s/ Mirtza J. Escobar|
Name: Mirtza J. Escobar
Title: Vice President
ACCESS FINANCING, LLC,
|By:||/s/ Bettie Lass|
Name: Bettie Lass
[Third Amendment to 2018-Three Supplement]
Consent of Series 2018-Three Noteholders:
TSO-FORTIVA NOTES HOLDCO LP,
as holder of 100% of Class A Notes
By: TowerBrook TSO GP (Alberta), L.P., its
By: TowerBrook Investors, Ltd., its General
By: /s/ Glenn F. Miller
Name: Glenn F. Miller
Title: Authorized Signatory
as holder of 100% of Class B Notes
By: /s/ Mitch Saunders
Name: Mitch Saunders
[Third Amendment to 2018-Three Supplement]