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Exhibit 10(a)(ii)
EXECUTION COPY
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XXXXX-XXXXXXX MASTER TRUST
SERIES 1997-1 SUPPLEMENT
Dated as of December 30, 1997
Among
THE EL-BEE RECEIVABLES CORPORATION,
AS TRANSFEROR,
THE EL-BEE CHARGIT CORP.,
AS SERVICER,
and
BANKERS TRUST COMPANY,
AS TRUSTEE
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TABLE OF CONTENTS
ARTICLE I
DESIGNATION
Section 1.01. Designation............................................................................. 1
ARTICLE II
DEFINITIONS
Section 2.01. Definitions............................................................................. 2
ARTICLE III
RIGHTS OF CERTIFICATEHOLDERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 3.01. Revolving Period Daily Principal Allocations............................................ 21
Section 3.02. Allocation of Collections of Principal Receivables...................................... 22
Section 3.03. Allocation of Collections of Finance Charge Receivables................................. 23
Section 3.04. Excess Spread........................................................................... 26
Section 3.05. Investor Charge-Offs.................................................................... 27
Section 3.06. Spread Account.......................................................................... 29
Section 3.07. Reserve Account......................................................................... 29
Section 3.08. Interest Rate Swaps and Caps............................................................ 30
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 4.01. Servicer Deposits....................................................................... 32
Section 4.02. Distributions........................................................................... 32
Section 4.03. Annual Certificateholders' Tax Statement................................................ 33
Section 4.04. Transferor's or Servicer's Failure to Make a Deposit or
Payment........................................................................... 34
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ARTICLE V
COVENANTS
Section 5.01. Covenants of the Servicer............................................................... 34
Section 5.02. Covenants of the Transferor............................................................. 35
ARTICLE VI
SERIES 1997-1 EARLY AMORTIZATION EVENTS
Section 6.01. Series Early Amortization Events........................................................ 35
Section 6.02. Trustee's Monitoring Obligations........................................................ 38
ARTICLE VII
MISCELLANEOUS
Section 7.01. Reassignment and Transfer Terms......................................................... 38
Section 7.02. Assignment by CRC and Liquidity Providers............................................... 38
Section 7.03. No Assignability by Transferor and Servicer; Transferor's
Liability......................................................................... 39
Section 7.04. Ratification of Pooling and Servicing Agreement......................................... 39
Section 7.05. Amendments.............................................................................. 39
Section 7.06. No Obligations under Swap Agreement..................................................... 39
Section 7.07. Counterparts............................................................................ 39
Section 7.08. Governing Law, Etc...................................................................... 39
Section 7.09. No Petition............................................................................. 40
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EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Collateral Investor Certificate
Exhibit A-3 Form of Subordinated Transferor Certificate
Exhibit B Form of Swap Agreement
Exhibit C Form of Cap Agreement
SERIES 1997-1 SUPPLEMENT
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This is the SERIES 1997-1 SUPPLEMENT, dated as of December 30,
1997 (this "SUPPLEMENT"), among THE EL-BEE RECEIVABLES CORPORATION, a Delaware
corporation, as Transferor (the "TRANSFEROR"), THE EL-BEE CHARGIT CORP., an Ohio
corporation, as Servicer (the "SERVICER"), and Bankers Trust Company, a New York
banking corporation, as Trustee (the "TRUSTEE"), to the Pooling and Servicing
Agreement, dated as of December 30, 1997, among the Transferor, the Servicer and
the Trustee (as amended, supplemented or otherwise modified from time to time,
the "POOLING AND SERVICING AGREEMENT").
All capitalized terms not otherwise defined herein are used
herein as defined in the Pooling and Servicing Agreement.
Pursuant to Section 6.09 of the Pooling and Servicing
Agreement, the Transferor, the Servicer and the Trustee may at any time and from
time to time enter into a supplement to the Pooling and Servicing Agreement for
the purpose of authorizing the delivery of one or more Series of Certificates by
the Trustee to the Transferor for the execution and redelivery to the Trustee
for authentication.
Pursuant to this Supplement, the Transferor and the Trustee
shall create a new Series of Investor Certificates and shall specify the
Principal Terms thereof.
ARTICLE I
DESIGNATION
Section 1.01. DESIGNATION. (a) There is hereby created a
Series of Investor Certificates to be issued in three classes pursuant to the
Pooling and Servicing Agreement and this Series Supplement and to be known
together as the "SERIES 1997-1 CERTIFICATES". The three classes shall be
designated the Class A Floating Rate Certificates, Series 1997-1 (the "CLASS A
CERTIFICATES"), the Collateral Investor Certificates, Series 1997-1 (the
"COLLATERAL INVESTOR CERTIFICATES") and the Subordinated Transferor Certificate,
Series 1997-1 (the "SUBORDINATED TRANSFEROR CERTIFICATE"). The Class A
Certificates, the Collateral Investor Certificates and the Subordinated
Transferor Certificate shall be substantially in the form of Exhibits X-0, X-0
and A-3 hereto, respectively.
(b) Series 1997-1 shall be included in Group One and shall be
a Principal Sharing Series. Series 1997-1 shall not be subordinated to any other
Series.
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(c) The Class A Certificates, Collateral Investor Certificates
and the Subordinated Transferor Certificate shall be delivered in fully
registered form as provided in Section 6.02 of the Pooling and Servicing
Agreement. The Transferor shall execute and deliver the Series 1997-1
Certificates to the Trustee for authentication in accordance with Section 6.01
of the Pooling and Servicing Agreement. The Trustee shall deliver the Series
1997-1 Certificates when authenticated in accordance with Section 6.02 of the
Pooling and Servicing Agreement.
(d) The Collateral Investor Certificateholder shall be
entitled to the benefits of the Transaction Documents upon payment by the
Collateral Investor Certificateholder of amounts owing by it on the Closing Date
pursuant to the Series 1997-1 Loan Agreement.
(e) The Subordinated Transferor Certificate shall be retained
by the Transferor.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS. (a) In the event that any term or
provision contained herein shall conflict with or be inconsistent with any
provision contained in the Pooling and Servicing Agreement, the terms and
provisions of this Supplement shall govern with respect to this Series.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this Section
2.01, and accounting terms partially defined in this Section 2.01 to the extent
not defined, shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting principles, as
applicable. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally accepted accounting
principles or regulatory accounting principles, the definitions contained herein
shall control.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Supplement shall refer to this Supplement as a
whole and not to any particular provision of this Supplement; and the term
"including" means "including without limitation".
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(d) Unless otherwise stated in this Supplement, in the
computation of a period of time from a specified date to a later specified date
the word "from" shall mean "from and including" and the words "to" and "until"
shall mean "to but excluding".
(e) Whenever used in this Supplement, the following words and
phrases shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms:
"ADJUSTED EURODOLLAR RATE" means, for any Interest Period, an
interest rate per annum equal to the rate per annum obtained by dividing (i) the
rate per annum at which deposits in Dollars are offered by the principal office
of Citibank, N.A. in London, England to prime banks in the London interbank
market at 11:00 a.m. (London time) two Business Days before the first day of
such period in an amount substantially equal to the amount to which the
"Adjusted Eurodollar Rate" is to be applied and for a period equal to such
Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve
Percentage (as defined below) for such period. "EURODOLLAR RESERVE PERCENTAGE"
means, for any period, the reserve percentage applicable two Business Days
before the first day of such period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor) (or,
if more than one such percentage shall be so applicable, the daily average of
such percentages for those days in such period during which any such percentage
shall so be applicable) for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for Citibank, N.A. with respect to liabilities or assets consisting of or
including "eurocurrency liabilities" as that term is used in Regulation D, as in
effect from time to time, of the Board of Governors of the Federal Reserve
System (or with respect to any other category of liabilities that includes
deposits by reference to which the Adjusted Eurodollar Rate is determined)
having a term equal to such period.
"ALTERNATE BASE RATE" means, for any Interest Period, a
fluctuating interest rate per annum in effect from time to time, which rate per
annum shall at all times be equal to the highest of:
(i) the rate of interest announced publicly by Citibank, N.A.
in New York, New York from time to time as Citibank, N.A.'s base rate;
(ii) the sum (adjusted to the nearest 1/4 of 1% or, if there
is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (A) 1/2 of 1%
per annum, PLUS (B) the rate obtained by dividing (1) the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of
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major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day on the next
succeeding Business Day) for the three- week period ending on the
previous Friday by Citibank, N.A. on the basis of such rates reported
by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank, N.A. from three certificate of deposit dealers of recognized
standing selected by Citibank, N.A., by (2) a percentage equal to 100%
minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for Citibank, N.A. with respect
to liabilities consisting of or including (among other liabilities)
three-month Dollar non-personal time deposits in the United States,
PLUS (C) the average during such three-week period of the annual
assessment rates estimated by Citibank, N.A. for determining the then
current annual assessment payable by Citibank, N.A. to the FDIC (or any
successor) for insuring Dollar deposits of Citibank, N.A. in the United
States; and
(iii) 1/2 of 1% per annum above the fluctuating interest rate
per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by Citibank,
N.A. from three Federal funds brokers of recognized standing selected
by it.
"AMORTIZATION DATE" means the last day of the 36th month
following the month in which the Closing Date for Series 1997-1 shall have
occurred.
"AMORTIZATION PERIOD" means the period commencing upon the
occurrence of the Amortization Date and ending upon the payment in full to the
Series 1997-1 Certificateholders of the Series Invested Amount, all accrued and
unpaid interest thereon and all other amounts owed to such Series 1997-1
Certificateholders under any Transaction Document.
"ASSIGNEE RATE" means, for any Interest Period, an interest
rate per annum equal to the Adjusted Eurodollar Rate PLUS 1.50%; PROVIDED,
HOWEVER, that, if (x) it shall become unlawful for Citibank, N.A. to obtain
funds in the London interbank market in order
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to purchase, fund or maintain its initial investment in the Class A Certificates
or any Increase hereunder, or deposits in dollars (in the applicable amounts)
are not being offered by Citibank, N.A. in the London interbank market, or (y)
Citibank, N.A. is unable to establish the Adjusted Eurodollar Rate for any
applicable period due to circumstances affecting the London interbank market
generally, or (z) a Series 1997-1 Majority in Interest of the Class A
Certificateholders or the Collateral Investor Certificateholders notifies the
Transferor and the Program Agent of their determination that the Adjusted
Eurodollar Rate will not adequately reflect the cost of funding or maintaining
the Class A Invested Amount or Collateral Invested Amount, respectively (until a
Series 1997-1 Majority in Interest of such Class A Certificateholders or
Collateral Investor Certificateholders, as applicable, shall have notified the
Transferor and the Program Agent that such Series 1997-1 Majority in Interest
has determined that the Adjusted Eurodollar Rate will adequately reflect such
cost), then, in each case, the Assignee Rate shall be the Alternate Base Rate in
effect from time to time PLUS 1/2 of 1%; PROVIDED FURTHER that following the
occurrence and during the continuation of an Early Amortization Period, the
"Assignee Rate" shall be the applicable interest rate per annum determined
pursuant to the provisions set forth above PLUS 1/2 of 1% per annum.
"AVAILABLE PRINCIPAL COLLECTIONS" means, with respect to any
Distribution Date, the sum of (i) the portion of all Collections of Principal
Receivables allocated to Series 1997-1 pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement for the most recently ended Due Period, (ii) any
Series 1997-1 Shared Principal Collections for such Distribution Date and (iii)
any other amounts which, pursuant to Article III hereof, are to be treated as
"Available Principal Collections" for such Distribution Date.
"BREAKAGE COSTS" means (a) with respect to CRC and for each
reduction of the Series Invested Amount other than on a Distribution Date, the
amount, if any, by which (i) the additional interest at the applicable
Certificate Rate (calculated without taking into account any breakage costs)
which would have accrued on an amount equal to the amount of such reduction of
the Series Invested Amount from the time of such reduction to the Distribution
Date next succeeding such reduction exceeds (ii) the income received by CRC to
the Distribution Date next succeeding such reduction from investing the proceeds
of such reduction of the Series Invested Amount or (b) with respect to a
Liquidity Provider or Collateral Investor, as the case may be, and for each
reduction of the Series Invested Amount other than on a Distribution Date, an
amount equal to the sum of (i) the additional interest at the applicable
Certificate Rate (calculated without taking into account any breakage costs)
which would have accrued on an amount equal to the amount of such reduction of
the Series Invested Amount, or its PRO RATA portion thereof, from the time of
such reduction through the last day of the period for which the Adjusted
Eurodollar Rate has been set MINUS (ii) the income received by such Liquidity
Provider or Collateral Investor, as the case may be, through the last day of
such period from investing the proceeds of such reductions of the Series
Invested Amount, or its PRO RATA portion
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of such proceeds, PLUS (iii) any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Liquidity Provider or Collateral Investor, as the case may be, to fund or
maintain its share of the Series Invested Amount; PROVIDED that, if the Assignee
Rate at the time of such reduction is determined by reference to the Alternate
Base Rate, then the amount under this clause (b) shall be deemed to be zero.
"CAP AGREEMENT" means the interest rate cap agreement dated
December 30, 1997 between the Parent and the Cap Provider, for the benefit of
the Class A Certificateholders and the Collateral Investor Certificateholders
(together with the Payment Letter dated the Closing Date, from the Parent to the
Cap Provider), in substantially the form attached hereto as Exhibit C, or any
Replacement Cap Agreement therefor.
"CAP PAYMENT" means, with respect to any Distribution Date,
the payment made by the Cap Provider to the Trust, on or prior to the Deposit
Date, pursuant to the Cap Agreement.
"CAP PROVIDER" means Citibank, N.A., or any successor or
assign thereto appointed as provided in the Cap Agreement, in its individual
capacity pursuant to the Cap Agreement, or if any Replacement Cap Agreement is
obtained therefor pursuant to Section 3.08, the Replacement Cap Provider.
"CERTIFICATE RATE" means, as applicable, the Class A
Certificate Rate, the Collateral Investor Certificate Rate or the Subordinated
Transferor Certificate Rate.
"CLASS A AVAILABLE FUNDS" means, with respect to any
Distribution Date, an amount equal to the sum of (a) the product of (i) the
Class A Floating Allocation for the most recently ended Due Period and (ii) an
amount equal to (A) the aggregate amount of Collections of Finance Charge
Receivables allocated to Series 1997-1 pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement for the most recently ended Due Period PLUS (B)
any amounts allocable as Collections of Finance Charge Receivables pursuant to
Section 4.03(d) of the Pooling and Servicing Agreement LESS (C) the aggregate
amount of such Collections of Finance Charge Receivables allocated pursuant to
Section 3.03(a) for such Distribution Date and (b) an amount equal to the
product of the Swap Payment with respect to such Distribution Date and the Class
A Swap Allocation with respect to such Distribution Date.
"CLASS A CERTIFICATE RATE" means (a) unless the Program Agent
notifies the Transferor and the Servicer that the Class A Invested Amount, or a
portion thereof, will not be funded by the issuance of CP Notes, the CP Rate; or
(b) to the extent the Program Agent has provided such notice, a per annum rate
equal to the Assignee Rate.
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"CLASS A CERTIFICATEHOLDER" means any Person in whose name a
Class A Certificate is registered in the Certificate Register.
"CLASS A CERTIFICATES" shall have the meaning specified in
Section 1.01(a) hereof.
"CLASS A EXPECTED FINAL PAYMENT DATE" means the March 20, 2001
Distribution Date.
"CLASS A FLOATING ALLOCATION" means, with respect to any Due
Period, the percentage equivalent of a fraction, the numerator of which is the
Class A Invested Amount as of the close of business on the last day of the most
recently ended Due Period and the denominator of which is equal to the Series
Invested Amount as of the close of business on such last day; PROVIDED, HOWEVER,
that, with respect to the initial Due Period, the Class A Floating Allocation
shall mean the percentage equivalent of a fraction, the numerator of which is
the Class A Initial Series Invested Amount and the denominator of which is the
Initial Series Invested Amount.
"CLASS A INITIAL SERIES INVESTED AMOUNT" means the aggregate
initial principal amount of the Class A Certificates, which is $117,000,000.
"CLASS A INVESTED AMOUNT" means, at any time, an amount equal
to (a) the Class A Initial Series Invested Amount, PLUS (b) the aggregate amount
of Increases after the Closing Date, MINUS (c) the aggregate amount of
Collections of Principal Receivables previously allocated under Section
3.02(b)(i), and distributed under Section 4.02(c) to Class A Certificateholders
MINUS (d) the excess, if any, of the aggregate amount of Class A Investor
Charge-Offs prior to such time over the aggregate cumulative amount allocated in
respect of Class A Investor Charge-Offs pursuant to Section 3.04(d) prior to
such time; PROVIDED, HOWEVER, that the Class A Invested Amount may not be
reduced below zero.
"CLASS A INVESTOR CHARGE-OFF" shall have the meaning specified
in Section 3.05(a).
"CLASS A INVESTOR LOSS AMOUNT" means, with respect to each
Distribution Date, an amount equal to the product of (a) the Investor Loss
Amount for the most recently ended Due Period and (b) the Class A Floating
Allocation applicable for such Due Period.
"CLASS A MONTHLY INTEREST" means, with respect to any
Distribution Date, an amount equal to:
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[ CR X IA X IP ] + [ DA + [ (CR + 2.0%) X DA X IP ] ]
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YR YR
wherein: CR = the Class A Certificate Rate in effect on the day
immediately preceding such Distribution Date.
IA = with respect to the initial Distribution Date, the
Class A Initial Series Invested Amount or, with
respect to any other Distribution Date the Class A
Invested Amount determined as of the day immediately
preceding such Distribution Date.
IP = the number of days in the period from and
including the immediately preceding Distribution
Date to but excluding the current Distribution Date.
DA = with respect to the initial Distribution Date,
zero or, with respect to any other Distribution
Date, the amount of any portion of the Class A
Monthly Interest with respect to each prior
Distribution Date which has not been distributed to
the Class A Certificateholders.
YR = 360, or, if the Class A Certificate Rate in effect
on the day immediately preceding such Distribution
Date is based on the Alternate Base Rate, 365.
"CLASS A MONTHLY SERVICING FEE" means, with respect to any
Distribution Date, the product of (i) the Investor Monthly Servicing Fee for
such Distribution Date and (ii) the Class A Floating Allocation with respect to
the most recently ended Due Period.
"CLASS A REQUIRED AMOUNT" means, with respect to any
Distribution Date, the amount, if any, by which (a) the sum of (i) the Class A
Monthly Interest for such Distribution Date, PLUS (ii) the Class A Monthly
Servicing Fee for such Distribution Date, PLUS (iii) the Class A Monthly
Servicing Fee, if any, due but not paid on any prior Distribution Date, PLUS
(iv) the Class A Investor Loss Amount, if any, for such Distribution Date,
exceeds (b) the aggregate amount of the Class A Available Funds allocated to the
Class A Certificateholders pursuant to Section 3.03 in respect thereof on such
Distribution Date.
"CLASS A SWAP ALLOCATION" means, with respect to any
Distribution Date, a fraction the numerator of which is the Class A Invested
Amount as of the close of business on the last day of the most recently ended
Due Period and the denominator of which is equal to
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the sum of the Class A Invested Amount and the Collateral Invested Amount, in
each case as of the close of business on such last day.
"CLOSING DATE" means, with respect to Series 1997-1, December
30, 1997.
"COLLATERAL INVESTED AMOUNT" means, at any time, an amount
equal to (a) the Collateral Investor Initial Series Invested Amount, MINUS (b)
the aggregate amount of Collections of Principal Receivables previously
allocated under Section 3.02(b)(ii), and distributed under Section 4.02(d) to
Collateral Investor Certificateholders, MINUS (c) the aggregate amount of
Collateral Investor Charge-Offs prior to such time, MINUS (d) the aggregate
amount of Reallocated Collateral Investor Principal Collections prior to such
time, MINUS (e) without duplication with the foregoing clause (c), an amount
equal to the amount by which the Collateral Invested Amount has been reduced
prior to such time pursuant to Section 3.05, PLUS (f) the aggregate amounts
allocated pursuant to Section 3.04(f) with respect to amounts deducted pursuant
to the foregoing clauses (c), (d) and (e) and distributed in respect thereof
prior to such time; PROVIDED, HOWEVER, that the Collateral Invested Amount may
not be reduced below zero or increased above the Collateral Investor Initial
Series Invested Amount.
"COLLATERAL INVESTOR AVAILABLE FUNDS" means, with respect to
any Distribution Date, an amount equal to the sum of (a) the product of (i) the
Collateral Investor Floating Allocation for the most recently ended Due Period
and (ii) an amount equal to (A) the aggregate amount of Collections of Finance
Charge Receivables allocated to Series 1997-1 pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement for the most recently ended Due Period PLUS (B)
any amounts allocable as Collections of Finance Charge Receivables pursuant to
Section 4.03(d) of the Pooling and Servicing Agreement LESS (C) the aggregate
amount of such Collections of Finance Charge Receivables allocated pursuant to
Section 3.03(a) hereof for such Distribution Date and (b) an amount equal to the
product of the Swap Payment with respect to such Distribution Date and the
Collateral Investor Swap Allocation with respect to such Distribution Date.
"COLLATERAL INVESTOR CERTIFICATEHOLDER" means any Person in
whose name a Collateral Investor Certificate is registered in the Certificate
Register.
"COLLATERAL INVESTOR CERTIFICATE RATE" means the Assignee
Rate.
"COLLATERAL INVESTOR CERTIFICATES" shall have the meaning
specified in Section 1.01(a) hereof.
"COLLATERAL INVESTOR CHARGE-OFF" shall have the meaning
specified in Section 3.05(b).
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"COLLATERAL INVESTOR EXPECTED FINAL PAYMENT DATE" means
December 30, 2001.
"COLLATERAL INVESTOR FLOATING ALLOCATION" means, with respect
to any Due Period, the percentage equivalent of a fraction, the numerator of
which is the Collateral Invested Amount as of the close of business on the last
day of the most recently ended Due Period and the denominator of which is equal
to the Series Invested Amount as of the close of business on such last day;
PROVIDED, HOWEVER, that, with respect to the first Due Period, the Collateral
Investor Floating Allocation shall mean the percentage equivalent of a
fraction, the numerator of which is the Collateral Investor Initial Series
Invested Amount and the denominator of which is the Initial Series Invested
Amount.
"COLLATERAL INVESTOR INITIAL SERIES INVESTED AMOUNT" means the
aggregate initial principal amount of the Collateral Investor Certificates,
which is $8,000,000.
"COLLATERAL INVESTOR LOSS AMOUNT" means, with respect to each
Distribution Date, an amount equal to the product of (a) the Investor Loss
Amount for the most recently ended Due Period and (b) the Collateral Investor
Floating Allocation applicable for such Due Period.
"COLLATERAL INVESTOR MONTHLY INTEREST" means, with respect to
any Distribution Date, an amount equal to:
[ CR X IA X IP ] + [ DA + [ (CR + 2.0%) X DA X IP ] ]
------------ ---------------------
YR YR
wherein: CR = the Collateral Investor Certificate Rate in effect
on the day immediately preceding such Distribution
Date.
IA = with respect to the initial Distribution Date, the
Collateral Investor Initial Series Invested Amount
or, with respect to any other Distribution Date the
Collateral Invested Amount determined as of the day
immediately preceding such Distribution Date.
IP = the number of days in the period from and
including the immediately preceding Distribution
Date to but excluding the current Distribution Date.
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DA = with respect to the initial Distribution Date,
zero or, with respect to any other Distribution
Date, the amount of any portion of the Collateral
Investor Monthly Interest with respect to each prior
Distribution Date which has not been distributed to
the Collateral Investor Certificateholders.
YR = 360, or, if the Collateral Investor Certificate
Rate in effect on the day immediately preceding such
Distribution Date is based on the Alternate Base
Rate, 365.
"COLLATERAL INVESTOR MONTHLY SERVICING FEE" means, with
respect to any Distribution Date, the product of (i) the Investor Monthly
Servicing Fee for such Distribution Date and (ii) the Collateral Investor
Floating Allocation with respect to the most recently ended Due Period.
"COLLATERAL INVESTOR REQUIRED AMOUNT" means, with respect to
any Distribution Date, the amount, if any, by which (a) the sum of (i) the
Collateral Investor Monthly Interest for such Distribution Date, PLUS (ii) the
Collateral Investor Monthly Servicing Fee for such Distribution Date, PLUS (iii)
the Collateral Investor Monthly Servicing Fee, if any, due but not paid on any
prior Distribution Date, PLUS (iv) the Collateral Investor Loss Amount, if any,
for such Distribution Date, exceeds (b) the aggregate amount of the Collateral
Investor Available Funds allocated to the Collateral Investor Certificateholders
pursuant to Section 3.03 in respect thereof on such Distribution Date.
"COLLATERAL INVESTOR SWAP ALLOCATION" means, with respect to
any Distribution Date, a fraction the numerator of which is the Collateral
Invested Amount as of the close of business on the last day of the most recently
ended Due Period and the denominator of which is equal to the sum of the Class A
Invested Amount and the Collateral Invested Amount, in each case as of the close
of business on such last day.
"CP NOTE" means any promissory note issued by CRC or any other
securitization company administered by Citicorp North America, Inc., which is an
assignee of CRC under the Transaction Documents.
"CP RATE" means, with respect to CRC and any other
securitization company administered by Citicorp North America, Inc., which is an
assignee of CRC under the Transaction Documents, for each Interest Period, the
per annum rate equivalent to the weighted average of the per annum rates paid or
payable by CRC or such other company from time to time as interest on or
otherwise (by means of interest rate xxxxxx or otherwise) with respect to those
CP Notes issued by CRC or such other company that are allocated, in whole
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or in part, by the Program Agent (on behalf of CRC or such other company) to
fund the purchase or maintenance of the Class A Invested Amount during such
Interest Period, as determined by the Program Agent (on behalf of CRC and any
such company) and reported to the Transferor and the Servicer, which rates shall
reflect and give effect to the commissions of placement agents and dealers with
respect to such CP Notes, to the extent such commissions are allocated, in whole
or in part, to such CP Notes by the Program Agent (on behalf of CRC and any such
company); PROVIDED, HOWEVER, that, if any component of such rate is a discount
rate, in calculating the "CP Rate" for such Interest Period, the Program Agent
shall for such component use the rate resulting from converting such discount
rate to an interest-bearing equivalent rate per annum.
"CRC" means Corporate Receivables Corporation, a California
corporation.
"CUMULATIVE PRINCIPAL SHORTFALL" means, as of any Distribution
Date during the Amortization Period or Early Amortization Period, the sum of the
Principal Shortfalls for each Series in Group One that is a Principal Sharing
Series.
"DEPOSIT DATE" means, with respect to any Distribution Date,
the Business Day immediately preceding such Distribution Date.
"DILUTED RECEIVABLE" means that portion (and only that
portion) of any Receivable which is reduced or cancelled as a result of (i) any
failure by any Originator to deliver any merchandise or provide any services or
otherwise to perform under the underlying Cardholder Agreement or invoice, (ii)
any change in the terms of, or cancellation of, a Cardholder Agreement or
invoice or any other adjustment which reduces the amount payable by the Obligor
on the related Receivable or Account or (iii) any set-off by an Obligor in
respect of any claim by such Obligor as to amounts owed by it on the related
Receivable or Account; PROVIDED that Diluted Receivables are calculated assuming
that all chargebacks are resolved in the Obligor's favor and do not include
contractual adjustments to the amount payable by an Obligor that are eliminated
from the Receivables balance sold to the Trust through a reduction in the
Purchase Price for the related Receivable.
"DILUTION RATIO" means, as of any date, the fraction (i) the
numerator of which is an amount equal to the Dilution Amount for the Due Period
most recently ended and (ii) the denominator of which is the aggregate
outstanding balance of all Principal Receivables in the Trust Assets on the last
day of the Due Period immediately preceding such most recently ended Due Period;
PROVIDED, HOWEVER, that, with respect to any date during the initial Due Period,
such denominator shall be the aggregate outstanding balance of all Principal
Receivables of the Originators on November 29, 1997.
SERIES 1997-1 SUPPLEMENT
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"DISTRIBUTION DATE" shall have the meaning specified in the
Pooling and Servicing Agreement, and the initial Distribution Date shall be
February 20, 1998.
"EARLY AMORTIZATION PERIOD" means the period commencing at the
close of business on the Business Day immediately preceding the day on which a
Series Early Amortization Event with respect to Series 1997-1 occurs and ending
on the Series 1997-1 Termination Date.
"ENHANCEMENT PROVIDER" shall not be applicable to this Series
1997-1.
"EXCESS SPREAD" means with respect to any Distribution Date,
the sum of the amounts with respect to such Distribution Date, if any,
constituting Excess Spread pursuant to Sections 3.03(b)(iv), 3.03(c)(iv) and
3.03(d)(ii).
"EXCESS SPREAD PERCENTAGE" means, as of any date of
determination, the Portfolio Yield on such date MINUS the sum of (i) the Class A
Certificate Rate in effect on such date multiplied by a fraction the numerator
of which is equal to the Class A Invested Amount on such date and the
denominator of which is equal to the sum of the Class A Invested Amount and the
Collateral Invested Amount on such date, (ii) the Collateral Investor
Certificate Rate in effect on such date multiplied by a fraction the numerator
of which is equal to the Collateral Invested Amount on such date and the
denominator of which is equal to the sum of the Class A Invested Amount and the
Collateral Invested Amount on such date and (iii) the Series Servicing Fee
Percentage.
"FINANCE CHARGE SHORTFALL" means, with respect to Series
1997-1, for any Distribution Date, the excess, if any, of the full amount
required to be allocated pursuant to Sections 3.03 and 3.04 on such Distribution
Date over the amount not allocated pursuant to such Sections.
"GROUP ONE" means Series 1997-1, and each other Series
specified in the related Supplement to be included in Group One.
"INCREASE" means the amount of each increase in the Class A
Invested Amount pursuant to the terms of the Certificate Purchase Agreement
relating to Series 1997-1.
"INITIAL SERIES INVESTED AMOUNT" the sum of the Class A
Initial Series Invested Amount, the Collateral Investor Initial Series Invested
Amount and the Subordinated Transferor Initial Invested Amount.
SERIES 1997-1 SUPPLEMENT
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14
"INTEREST PERIOD" means, with respect to any Distribution
Date, (i) with respect to the CP Rate and the Alternate Base Rate, the period
from the Closing Date to the first Distribution Date after the Closing Date and
thereafter a period from each Distribution Date to the next succeeding
Distribution Date, and (ii) with respect to the Adjusted Eurodollar Rate, the
period from the Closing Date to the first Distribution Date after the Closing
Date and thereafter a period from each Distribution Date to the first or, upon
the request of the Transferor and with the consent of the Program Agent, second
or third next succeeding Distribution Date.
"INTEREST RATE PROTECTION AGREEMENT" means each of the Swap
Agreement and the Cap Agreement.
"INVESTOR CERTIFICATEHOLDER" means (a) with respect to the
Class A Certificates, any Class A Certificateholder, (b) with respect to the
Collateral Investor Certificates, any Collateral Investor Certificateholder, and
(c) with respect to the Subordinated Transferor Certificate, any Subordinated
Transferor Certificateholder.
"INVESTOR CERTIFICATES" means the Class A Certificates, the
Collateral Investor Certificates and the Subordinated Transferor Certificate.
"INVESTOR LOSS AMOUNT" means, with respect to any Distribution
Date, the portion of the Loss Amounts allocated to Series 1997-1 pursuant to
Section 4.03(b) of the Pooling and Servicing Agreement for the related Due
Period.
"INVESTOR MONTHLY SERVICING FEE" means, with respect to any
Distribution Date, an amount equal to one-twelfth of the product of (i) the
Series Servicing Fee Percentage and (ii) the Series Invested Amount as of the
last day of the most recent Due Period preceding such Distribution Date;
PROVIDED, HOWEVER, that with respect to the initial Distribution Date, the
Investor Monthly Servicing Fee shall be equal to $226,667.
"LIQUIDITY PROVIDER" means any liquidity provider specified in
the Certificate Purchase Agreement for Series 1997-1 and any of its successors
and assigns.
"NET LOSS PERCENTAGE" means at any date, the amount equal to,
in percentage terms, the aggregate outstanding balance of the Principal
Receivables relating to all Accounts which any Originator or the Servicer has
charged off pursuant to the Cardholder Guidelines (net of Recoveries) during the
Due Period most recently ended DIVIDED BY an amount equal to the aggregate
outstanding balance of all Principal Receivables in the Trust Assets on the last
day of the Due Period immediately preceding such most recently ended Due Period;
PROVIDED, HOWEVER, that, with respect to any date during the initial Due Period,
such aggregate
SERIES 1997-1 SUPPLEMENT
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15
outstanding balance shall be the aggregate outstanding balance of all Principal
Receivables of the Originators on November 29, 1997.
"PORTFOLIO YIELD" means, with respect to any Due Period, the
annualized percentage equivalent of a fraction, the numerator of which is an
amount equal to the sum of (i) the product of the Floating Allocation Percentage
for such Due Period and the aggregate amount of Collections of Finance Charge
Receivables for such Due Period, (ii) any Series 1997-1 Shared Excess Finance
Charge Collections for the related Distribution Date, (iii) the aggregate amount
of interest or other proceeds earned on amounts on deposit in any Series Account
during such Due Period and (iv) the aggregate amount of Swap Payments received
by the Trust during such Due Period, such sum to be calculated on a cash basis
after subtracting the Investor Loss Amount for such Due Period, and the
denominator of which is the Series Invested Amount as of the last day of the
preceding Due Period (or with respect to the initial Due Period, the
Initial Series Invested Amount).
"PRINCIPAL COLLECTION ACCOUNT" shall have the meaning
specified in Section 3.09.
"PRINCIPAL SHORTFALL" means, on any Distribution Date during
the Amortization Period or the Early Amortization Period, the amount by which
the Series Invested Amount exceeds the Available Principal Collections for such
Distribution Date.
"PROGRAM AGENT" means Citicorp North America, Inc., in its
capacity as agent for CRC.
"PROGRAM AGENT'S ACCOUNT" shall have the meaning specified in
the Certificate Purchase Agreement for Series 1997-1.
"RATING AGENCY" means Xxxxx'x and Standard & Poor's.
"REALLOCATED COLLATERAL INVESTOR PRINCIPAL COLLECTIONS" means,
with respect to any Distribution Date, the aggregate amount of Available
Principal Collections allocated in accordance with Sections 3.02(a)(i) and
3.02(a)(ii) and distributed accordingly on such Distribution Date, LESS the
aggregate amount of Reallocated Subordinated Transferor Principal Collections on
such Distribution Date.
"REALLOCATED SUBORDINATED TRANSFEROR PRINCIPAL COLLECTIONS"
means, with respect to any Distribution Date, the aggregate amount of Available
Principal Collections allocated in accordance with Sections 3.02(a)(i) and
3.02(a)(ii) on such Distribution Date in an amount not to exceed the lesser of
(a) the product of (i) the Subordinated Transferor Floating
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Allocation with respect to the most recently ended Due Period, and (ii) the
amount of Available Principal Collections with respect to such Distribution Date
and (b) the Subordinated Transferor Invested Amount on such Distribution Date.
"REPLACEMENT CAP AGREEMENT" means any replacement interest
rate cap agreement between the Trust and the Replacement Cap Provider having
substantially similar terms and conditions to the Cap Agreement (including the
Payment Letter referred to in the definition thereof) it replaces.
"REPLACEMENT CAP PROVIDER" means the replacement cap provider
named in the Replacement Cap Agreement.
"REPLACEMENT SWAP AGREEMENT" means any replacement interest
rate swap agreement between the Parent and the Replacement Swap Provider having
substantially similar terms and conditions to the Swap Agreement (including the
Payment Letter referred to in the definition thereof) it replaces.
"REPLACEMENT SWAP PROVIDER" means the replacement swap
provider named in the Replacement Swap Agreement.
"RESERVE ACCOUNT" shall have the meaning specified in Section
3.07.
"RESERVE ACCOUNT REQUIRED BALANCE" means $700,000.
"REVOLVING PERIOD" means the period from and including the
Closing Date to, but not including, the earlier of (i) the day the Amortization
Period commences or (ii) the day any Early Amortization Period commences.
"SERIES DISCOUNT FACTOR" means, for this Series 1997-1, with
respect to any date of determination, an amount (expressed as a percentage)
determined in accordance with the following formula:
[[PY- (BR + 1% )] / TR] * FAP
wherein: BR = The sum (expressed as a percentage) of (a)
the sum of (i) a fraction, the numerator of
which is the product of the Class A
Certificate Rate for the most recently ended
Due Period and the Class A Invested Amount
as of the last day of such Due Period, and
the denominator of which is the Series
Invested Amount as of such last day, (ii) a
fraction, the numerator of which is the
product of the Collateral
SERIES 1997-1 SUPPLEMENT
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Investor Certificate Rate for the most
recently ended Due Period and the Collateral
Invested Amount as of the last day of such
Due Period, and the denominator of which is
the Series Invested Amount as of such last
day and (iii) a fraction, the numerator of
which is the product of the Subordinated
Transferor Certificate Rate for the most
recently ended Due Period and the
Subordinated Transferor Invested Amount as
of the last day of such Due Period, and the
denominator of which is the Series Invested
Amount as of such last day and (b) the
Series Servicing Fee Percentage per annum in
effect on such date.
PY = The Portfolio Yield for such Series for the
most recently ended Due Period.
TR = The annualized average (expressed as a
percentage) of, for each of the three Due
Periods most recently ended on or before
such date, a fraction the numerator of which
is the aggregate principal amount (measured
for each Receivable at the time of
acquisition) of all Receivables that were
acquired by the Trust during each such Due
Period and the denominator of which is the
aggregate outstanding principal balance of
all Receivables as of the last day of each
such Due Period.
FAP = The Floating Allocation Percentage for such
Series for the most recently ended Due
Period.
"SERIES INVESTED AMOUNT" means, on any date of determination
and with respect to Series 1997-1, an amount equal to the sum of (a) the Class A
Invested Amount, (b) the Collateral Invested Amount and (c) the Subordinated
Transferor Invested Amount, each as of such date.
"SERIES 1997-1" means the Series of the Xxxxx-Xxxxxxx Master
Trust represented by the Series 1997-1 Certificates.
"SERIES 1997-1 CERTIFICATEHOLDER" means any Person in whose
name a Series 1997-1 Certificate is registered in the Certificate Register.
"SERIES 1997-1 CERTIFICATES" means the Class A Certificates,
the Collateral Investor Certificates and the Subordinated Transferor
Certificate.
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18
"SERIES 1997-1 LOAN AGREEMENT" means the agreement among the
Transferor, the Servicer, the Trustee and the Collateral Investor
Certificateholder, dated as of the Closing Date, as amended, supplemented or
otherwise modified from time to time.
"SERIES 1997-1 MAJORITY IN INTEREST" means, with respect to
either the Class A Certificateholders or the Collateral Investor
Certificateholders, the holders of Certificates evidencing 51% or more of the
aggregate Class A Invested Amount or Collateral Invested Amount, respectively.
"SERIES 1997-1 MONTHLY PROGRAM FEES" means, with respect to
any Distribution Date, an amount equal to the fees accrued and payable on such
Distribution Date pursuant to the Fee Letter.
"SERIES 1997-1 MONTHLY TRUSTEE'S FEE" means, with respect to
any Distribution Date, the amount agreed upon from time to time by the Trustee,
the Servicer and the Program Agent as the fee accrued and payable on such
Distribution Date to the Trustee with respect to the Agreement and this
Supplement.
"SERIES 1997-1 SHARED EXCESS FINANCE CHARGE COLLECTIONS" means
the portion of Shared Excess Finance Charge Collections allocated to Series
1997-1 pursuant to Section 4.03(f) of the Pooling and Servicing Agreement.
"SERIES 1997-1 SHARED PRINCIPAL COLLECTIONS" means the portion
of Shared Principal Collections allocated to Series 1997-1 pursuant to Sections
4.03(d) and 4.03(e) of the Pooling and Servicing Agreement.
"SERIES 1997-1 TERMINATION DATE" means the earliest to occur
of (i) the Distribution Date on which all amounts payable in respect of the
Series 1997-1 Certificates have been paid in full, (ii) the April 20, 2005
Distribution Date or (iii) the date of termination of the Trust pursuant to
Section 12.01 of the Pooling and Servicing Agreement.
"SERIES SERVICING FEE PERCENTAGE" means 2.0%.
"SHARED EXCESS FINANCE CHARGE COLLECTIONS" means, with respect
to any Distribution Date, the amount specified in Section 3.04(o) as
constituting "Shared Excess Finance Charge Collections."
"SHARED PRINCIPAL COLLECTIONS" means, with respect to any
Distribution Date, the aggregate amounts allocated to the Investor Certificates
pursuant to Section 3.02(b)(iv) to be treated as "Shared Principal Collections."
SERIES 1997-1 SUPPLEMENT
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19
"SPREAD ACCOUNT" shall have the meaning specified in Section
3.06.
"SUBORDINATED TRANSFEROR AVAILABLE FUNDS" means, with respect
to any Distribution Date, an amount equal to (a) the product of the Subordinated
Transferor Floating Allocation for the most recently ended Due Period and (b) an
amount equal to (A) Collections of Finance Charge Receivables allocated to
Series 1997-1 pursuant to Section 4.03(b) of the Pooling and Servicing Agreement
for the most recently ended Due Period PLUS (B) any amounts allocable as
Collections of Finance Charge Receivables pursuant to Section 4.03(d) of the
Pooling and Servicing Agreement LESS (C) the amount of such Collections of
Finance Charge Receivables allocated pursuant to Section 3.03(a) hereof for such
Distribution Date.
"SUBORDINATED TRANSFEROR CERTIFICATEHOLDER" means any person
in whose name a Subordinated Transferor Certificate is registered in the
Certificate Register.
"SUBORDINATED TRANSFEROR CERTIFICATE RATE" means a per annum
rate equal to 0.25% per annum in excess of the Collateral Investor Certificate
Rate.
"SUBORDINATED TRANSFEROR CERTIFICATE" shall have the meaning
specified in Section 1.01(a) hereof.
"SUBORDINATED TRANSFEROR CHARGE-OFF" shall have the meaning
specified in Section 3.05(c) hereof.
"SUBORDINATED TRANSFEROR FLOATING ALLOCATION" means, with
respect to any Due Period, the percentage equivalent of a fraction, the
numerator of which is the Subordinated Transferor Invested Amount as of the
close of business on the last day of the most recently ended Due Period and the
denominator of which is equal to the Series Invested Amount as of the close of
business on such last day; PROVIDED, HOWEVER, that, with respect to the first
Due Period, the Subordinated Transferor Floating Allocation shall mean the
percentage equivalent of a fraction, the numerator of which is the Subordinated
Transferor Initial Invested Amount and the denominator of which is the Initial
Series Invested Amount.
"SUBORDINATED TRANSFEROR INITIAL INVESTED AMOUNT" means the
aggregate initial principal amount of the Subordinated Transferor Invested
Amount, which is $8,000,000.
"SUBORDINATED TRANSFEROR INTEREST MONTHLY SERVICING FEE"
means, with respect to any Distribution Date, the product of (i) the Investor
Monthly Servicing Fee for such Distribution Date and (ii) the Subordinated
Transferor Floating Allocation for the most recently ended Due Period.
SERIES 1997-1 SUPPLEMENT
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"SUBORDINATED TRANSFEROR INVESTED AMOUNT" means, at any time,
an amount equal to (a) the Subordinated Transferor Initial Invested Amount,
MINUS (b) the aggregate amount of Collections of Principal Receivables
previously allocated under Section 3.02(b)(iii), and distributed under Section
4.02(e) to the Subordinated Transferor Certificateholders, MINUS (c) the
aggregate amount of Subordinated Transferor Charge-Offs prior to such time,
MINUS (d) the aggregate amount of Reallocated Subordinated Transferor Principal
Collections prior to such time, MINUS (e) without duplication with the foregoing
clause (c), an amount equal to the amount by which the Subordinated Transferor
Invested Amount has been reduced prior to such time pursuant to Section 3.05,
PLUS (f) the aggregate amounts allocated pursuant to Section 3.04(m) with
respect to amounts deducted pursuant to the foregoing clauses (c), (d) and (e)
and distributed in respect thereof prior to such time; PROVIDED, HOWEVER, that
the Subordinated Transferor Invested Amount may not be reduced below zero or
increased above the Subordinated Transferor Initial Invested Amount.
"SUBORDINATED TRANSFEROR LOSS AMOUNT" means, with respect to
any Distribution Date, an amount equal to the product of (a) the Investor Loss
Amount for the most recently ended Due Period and (b) the Subordinated
Transferor Floating Allocation applicable for such Due Period.
"SUBORDINATED TRANSFEROR MONTHLY INTEREST" means, with respect
to any Distribution Date, an amount equal to:
]
CR X IA X IP + DA + (CR + 2.0%) X DA X IP ]]
------------ ---------------------
YR YR
wherein: CR = the Subordinated Transferor Certificate Rate in
effect on the day immediately preceding such
Distribution Date.
IA = with respect to the initial Distribution Date, the
Subordinated Transferor Initial Invested Amount or,
with respect to any other Distribution Date the
Subordinated Transferor Invested Amount determined
as of the day immediately preceding such
Distribution Date.
IP = the number of days in the period from and
including the immediately preceding Distribution
Date to but excluding the current Distribution Date.
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DA = with respect to the initial Distribution Date,
zero or, with respect to any other Distribution
Date, the amount of any portion of the Subordinated
Transferor Monthly Interest with respect to each
prior Distribution Date which has not been
distributed to the Subordinated Transferor
Certificateholders.
YR = 360, or, if the Subordinated Transferor
Certificate Rate in effect on the day immediately
preceding such Distribution Date is based on a
Collateral Investor Certificate Rate which is in
turn based on the Alternate Base Rate, 365.
"SWAP AGREEMENT" means the interest rate swap agreement dated
December 30, 1997 between the Parent and the Swap Provider, for the benefit of
the Class A Certificateholders and the Collateral Investor Certificateholders,
together with the Payment Letter dated the Closing Date, from the Parent to the
Swap Provider, in each case in substantially the form attached hereto as Exhibit
B, or any Replacement Swap Agreement therefor.
"SWAP PAYMENT" means, with respect to any Distribution Date,
the sum of (a) the payment made by the Swap Provider to the Trust, if any, on or
prior to the Deposit Date, pursuant to the Swap Agreement (so long as such
amount is positive) and (b) the Cap Payment for such Distribution Date.
"SWAP PROVIDER" means Citibank, N.A., or any successor or
assign thereto appointed as provided in the Swap Agreement, in its individual
capacity pursuant to the Swap Agreement, or if any Replacement Swap Agreement is
obtained therefor pursuant to Section 3.08, the Replacement Swap Provider.
SERIES 1997-1 SUPPLEMENT
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ARTICLE III
RIGHTS OF CERTIFICATEHOLDERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 3.01. REVOLVING PERIOD DAILY PRINCIPAL ALLOCATIONS.
(a) On any Business Day, prior to the making of any allocations, distributions
or deposits pursuant to Sections 3.01(b) and 3.02 below, if any Swap Agreement
or Cap Agreement shall cease to be in full force and effect on or prior to such
Business Day, the Program Agent may instruct the Trustee in writing to, and the
Trustee shall, for the purpose of obtaining a Replacement Swap Agreement or
Replacement Cap Agreement, as the case may be, allocate and distribute all
Collections of Principal Receivables deposited in the Concentration Account on
such Business Day and any credit balance remaining in the Principal Collection
Account in accordance with such written instructions, up to the amount required
to obtain such Replacement Swap Agreement or Replacement Cap Agreement.
(b) On each Business Day during the Revolving Period, the
Servicer shall instruct the Trustee by the Daily Report to, and the Trustee
shall, with respect to all Collections of Principal Receivables deposited in the
Concentration Account on such Business Day and the credit balance remaining in
the Principal Collection Account:
(i) allocate and distribute to the holder of the Exchangeable
Transferor Certificate, such Collections of Principal Receivables and,
to the extent such Collections of Principal Receivables are
insufficient, the credit balance in the Principal Collection Account,
up to an aggregate amount equal to the aggregate outstanding balance of
all Principal Receivables Transferred to the Trust on the immediately
preceding Business Day;
(ii) allocate to and deposit in the Principal Collection
Account any remaining balance of such Collections of Principal
Receivables.
Section 3.02. ALLOCATION OF COLLECTIONS OF PRINCIPAL
RECEIVABLES. (a) On each Distribution Date during the Revolving Period, after
the allocations required to be made pursuant to Sections 3.03 and 3.04 for such
Distribution Date shall have been made, the Servicer shall instruct the Trustee
by the Monthly Servicer's Report to, and the Trustee shall, allocate the
Available Principal Collections for such Distribution Date in the following
priority:
(i) to the Class A Certificateholders, in the order of
priority and up to the amounts specified in Sections 3.03(b)(i), (ii)
and (iii) below, but in an aggregate
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amount not to exceed an amount equal to the lesser of (x) the product
of (1) the sum of the Collateral Investor Floating Allocation and the
Subordinated Transferor Floating Allocation, in each case for
the most recently ended Due Period, and (2) such Available Principal
Collections and (y) the sum of the Collateral Invested Amount and the
Subordinated Transferor Invested Amount, in each case, on such
Distribution Date;
(ii) any remaining balance to the Collateral Investor, in the
order of priority and up to the amounts specified in Sections
3.03(c)(i), (ii) and (iii) below, but in an aggregate amount not to
exceed an amount equal to the lesser of (A) an amount equal to the sum
of (i) the product of (x) the Subordinated Transferor Floating
Allocation for the most recently ended Due Period and (y) such
Available Principal Collections LESS (ii) the amount allocated to the
Class A Certificateholders pursuant to Section 3.02(a)(i) above on such
Distribution Date and (B) the Subordinated Transferor Invested Amount
on such Distribution Date; and
(iii) any remaining balance shall be allocated to the holder
of the Exchangeable Transferor Certificate; PROVIDED, HOWEVER, that in
no event shall the amount allocated to the holder of the Exchangeable
Transferor Certificate pursuant to this Section 3.02(a)(iii) be greater
than the Transferor Interest on such Distribution Date.
(b) On each Distribution Date during the Amortization Period
or Early Amortization Period, the Servicer shall instruct the Trustee by the
Monthly Servicer's Report to, and the Trustee shall, allocate the Available
Principal Collections for such Distribution Date, PLUS an amount equal to the
credit balance in the Principal Collection Account, PLUS an amount equal to the
credit balance in the Reserve Account, in the following priority:
(i) to the Class A Certificateholders, until the Class A
Invested Amount shall be reduced to zero;
(ii) any remaining balance, to the Collateral Investor
Certificateholders, until the Collateral Invested Amount shall be
reduced to zero;
(iii) any remaining balance, to the Subordinated Transferor
Certificateholders, until the Subordinated Transferor Invested Amount
shall be reduced to zero;
(iv) any remaining balance or, if less, an amount equal to the
product of (1) a fraction, the numerator of which is equal to such
Available Principal Collections
SERIES 1997-1 SUPPLEMENT
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and the denominator of which is equal to the sum of the Available
Principal Collections for each Series (including this Series 1997-1) in
Group One that is a Principal Sharing Series for the most recently
ended Due Period and (2) the Cumulative Principal Shortfall for such
Distribution Date, shall be treated as "Shared Principal Collections"
and allocated to Series in Group One which are Principal Sharing Series
other than this Series 1997-1; and
(v) any remaining balance, to the holder of the Exchangeable
Transferor Certificate.
Section 3.03. ALLOCATION OF COLLECTIONS OF FINANCE CHARGE
RECEIVABLES. On each Distribution Date, the Servicer shall instruct the Trustee
by the Monthly Servicer's Report to, and the Trustee shall allocate all
Collections of Finance Charge Receivables (including any amounts allocable as
Collections of Finance Charge Receivables pursuant to Section 4.03(d) of the
Pooling and Servicing Agreement) for the most recently ended Due Period, any
Swap Payment for such Distribution Date and, where specified below, the credit
balance in each of the Reserve Account and, with respect to Section 3.03(c)
below, the Spread Account in the following priority:
(a) an amount equal to all such Collections of Finance Charge
Receivables for the most recently ended Due Period PLUS, to the extent
such amount is insufficient to make the allocations provided for in
clauses (i) and (ii) of this Section 3.03(a), an amount equal to the
lesser of such insufficiency or the credit balance in the Reserve
Account, in the following priority:
(i) to the Trustee, up to an amount equal to the
Series 1997-1 Monthly Trustee's Fee for such Distribution
Date;
(ii) any remaining balance to the Program Agent, up
to an amount equal to the Series 1997-1 Monthly Program Fees
for such Distribution Date; and
(iii) any remaining balance to be allocated as
provided in Sections 3.03(b), 3.03(c) and 3.03(d) below,
(b) a portion of such Collections of Finance Charge
Receivables (including any amounts allocable as Collections of Finance
Charge Receivables pursuant to Section 4.03(d) of the Pooling and
Servicing Agreement) and of any Swap Payment for such Distribution Date
equal to the Class A Available Funds for the most recently ended Due
Period, PLUS to the extent such amount is insufficient to make the
allocations provided for in clauses (i), (ii) and (iii) of this Section
3.03(b), an amount equal to the
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lesser of such insufficiency or the credit balance remaining in the
Reserve Account, in the following priority:
(i) to the Class A Certificateholders, up to an
amount equal to the Class A Monthly Interest for such
Distribution Date;
(ii) any remaining balance, up to an amount equal to
the Class A Investor Loss Amount, if any, as of such
Distribution Date, shall be allocated as "Available Principal
Collections" for such Distribution Date (to be allocated in
accordance with Section 3.02);
(iii) any remaining balance, up to an amount equal
to the Class A Monthly Servicing Fee for such Distribution
Date PLUS the amount of any Class A Monthly Servicing Fee for
each prior Distribution Date which has not been distributed to
the Servicer, to the Servicer; and
(iv) any remaining balance as "Excess Spread", to be
allocated as set forth in Section 3.04,
(c) a portion of such Collections of Finance Charge
Receivables (including any amounts allocable as Collections of Finance
Charge Receivables pursuant to Section 4.03(d) of the Pooling and
Servicing Agreement) and of any Swap Payment for such Distribution Date
equal to the Collateral Investor Available Funds for the most recently
ended Due Period, PLUS, to the extent such amount and the amount
allocated pursuant to the proviso to this Section 3.03(c) are
insufficient to make the allocations provided for in clauses (i), (ii)
and (iii) of this Section 3.03(c), an amount equal to the lesser of
such insufficiency or the credit balance remaining in the Reserve
Account, in the following priority:
(i) to the Collateral Investor Certificateholders, up
to an amount equal to the Collateral Investor Monthly Interest
for such Distribution Date;
(ii) any remaining balance, up to an amount equal to
the Collateral Investor Loss Amount, if any, as of such
Distribution Date, shall be allocated as "Available Principal
Collections" for such Distribution Date (to be allocated
accordingly);
(iii) any remaining balance, up to an amount equal
to the Collateral Investor Monthly Servicing Fee for such
Distribution Date, PLUS the amount of
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any Collateral Investor Monthly Servicing Fee due but not paid
to the Servicer on any prior Distribution Date, to the
Servicer; and
(iv) any remaining balance as "Excess Spread", to be
allocated as set forth in Section 3.04;
PROVIDED, HOWEVER, that if the Collateral Investor Available Funds and
any amounts on deposit in the Reserve Account are insufficient to
allocate fully for the amounts specified in clauses (i), (ii) and (iii)
above, an amount equal to the lesser of such insufficiency or the
credit balance remaining in the Spread Account shall be allocated in
accordance with such clauses, and
(d) a portion of such Collections of Finance Charge
Receivables (including any amounts allocable as Collections of Finance
Charge Receivables pursuant to Section 4.03(d) of the Pooling and
Servicing Agreement) equal to the Subordinated Transferor Available
Funds for the most recently ended Due Period, in the following
priority:
(i) to the Servicer, up to an amount equal to the
Subordinated Transferor Interest Monthly Servicing Fee for
such Distribution Date, PLUS the amount of any Subordinated
Transferor Interest Monthly Servicing Fee for each prior
Distribution Date which has not been distributed to the
Servicer; and
(ii) any remaining balance as "Excess Spread", to be
allocated as set forth in Section 3.04.
Section 3.04. EXCESS SPREAD. On each Distribution Date, the
Servicer shall instruct the Trustee by the Monthly Servicer's Report to allocate
Excess Spread, Series 1997-1 Shared Excess Finance Charge Collections and, after
allocations, if any, on such Distribution Date pursuant to Section 3.03(c) shall
have been made, the credit balance in the Spread Account, in each case with
respect to the most recently ended Due Period, in the following priority:
(a) to the Trustee, up to an amount equal to any portion of
the Series 1997-1 Monthly Trustee's Fee for such Distribution Date
which shall not have been allocated thereto pursuant to Section
3.02(a)(i);
(b) any remaining balance to the Program Agent, up to an
amount equal to any portion of the Series 1997-1 Program Fees which
shall not have been allocated thereto pursuant to Section 3.02(a)(ii);
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(c) any remaining balance to the Class A Certificateholders,
up to an amount equal to the Class A Required Amount, if any, with
respect to such Distribution Date, allocated in accordance with, and in
the priority and up to the amounts set forth in, Section 3.03(b);
(d) any remaining balance to the Class A Certificateholders,
until the aggregate cumulative amount allocated under this Section
3.04(d) equals the aggregate amount of Class A Investor Charge-Offs,
shall be allocated as "Available Principal Collections" for such
Distribution Date (to be allocated accordingly);
(e) any remaining balance to the Collateral Investor
Certificateholders, up to an amount equal to the Collateral Investor
Required Amount, if any, with respect to such Distribution Date,
allocated in accordance with, and in the priority and up to the amounts
set forth in, Section 3.03(c);
(f) any remaining balance, up to an amount equal to the
aggregate amount by which the Collateral Invested Amount has been
reduced below the Collateral Investor Initial Series Invested Amount,
except for reductions pursuant to Section 3.02(b)(ii), shall be
allocated as "Available Principal Collections" for such Distribution
Date (to be allocated accordingly);
(g) any remaining balance to the Program Agent, up to an
amount equal to the Breakage Costs, if any, for the most recently ended
Due Period;
(h) any remaining balance, if the Excess Spread Percentage for
the three consecutive Due Periods ending immediately before such
Distribution Date is less than 1%, up to an amount equal to the excess,
if any, of the Collateral Investor Initial Invested Amount over the
credit balance in the Spread Account, to be deposited in the Spread
Account;
(i) at any time after the credit balance in the Reserve
Account initially equals or exceeds the Reserve Account Required
Balance, any remaining balance shall be allocated to and deposited in
the Reserve Account, until the credit balance on deposit in the Reserve
Account is equal to at least the Reserve Account Required Balance;
(j) any remaining balance to the Servicer, up to an amount
equal to the Subordinated Transferor Monthly Servicing Fee for such
Distribution Date;
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(k) any remaining balance to the Subordinated Transferor
Certificateholders, up to an amount equal to the Subordinated
Transferor Monthly Interest for such Distribution Date PLUS the amount
of any Subordinated Transferor Monthly Interest with respect to each
prior Distribution Date which has not been distributed to the
Subordinated Transferor Certificateholders;
(l) any remaining balance, up to an amount equal to the
Subordinated Transferor Loss Amount, if any, for such Distribution
Date, shall be allocated as "Available Principal Collections" for such
Distribution Date (to be allocated accordingly);
(m) any remaining balance, up to an amount equal to the
aggregate amount by which the Subordinated Transferor Invested Amount
has been reduced below the Subordinated Transferor Initial Invested
Amount, except for reductions pursuant to Section 3.02(b)(iii), shall
be allocated as "Available Principal Collections" for such Distribution
Date (to be allocated accordingly);
(n) any remaining balance to and deposited in the Reserve
Account, until the credit balance on deposit in the Reserve Account is
equal to at least the Reserve Account Required Balance; and
(o) any remaining balance will constitute "Shared Excess
Finance Charge Collections" for such Distribution Date and will be
available for allocation to other Series in Group One or to the holder
of the Exchangeable Transferor Certificate as described in Section
4.03(f) of the Pooling and Servicing Agreement.
Section 3.05. INVESTOR CHARGE-OFFS. (a) On or before each Distribution
Date, the Servicer shall calculate the Class A Investor Loss Amount for such
Distribution Date. If, on any Distribution Date, such Class A Investor Loss
Amount exceeds the sum of the amounts allocated to the Class A
Certificateholders with respect thereto pursuant to Sections 3.03(b) and 3.04
with respect to such Distribution Date, the Subordinated Transferor Invested
Amount (after giving effect to reductions thereof for any Reallocated
Subordinated Transferor Principal Collections on such Distribution Date) will be
reduced by the amount of such excess. In the event that such reduction would
cause the Subordinated Transferor Invested Amount to be a negative number, the
Subordinated Transferor Invested Amount will be reduced to zero, and the
Collateral Invested Amount (after giving effect to reductions thereof for any
Reallocated Collateral Investor Principal Collections on such Distribution Date)
will be reduced by the amount by which the Subordinated Transferor Invested
Amount would have been reduced below zero. In the event that such reduction
would cause the Collateral Invested Amount to be a negative number, the
Collateral Invested Amount will be reduced to zero, and the Class A
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Invested Amount will be reduced by the amount by which the Collateral Invested
Amount would have been reduced below zero, but not by more than the Class A
Investor Loss Amount for such Distribution Date (such reduction being a "CLASS A
INVESTOR CHARGE-OFF").
(b) On or before each Distribution Date, the Servicer shall
calculate the Collateral Investor Loss Amount for such Distribution Date. If on
any Distribution Date, such Collateral Investor Loss Amount exceeds the sum of
the amounts allocated to the Collateral Investor Certificateholders with respect
thereto pursuant to Sections 3.03(c) and 3.04 with respect to such Distribution
Date, the Subordinated Transferor Invested Amount (after giving effect to
reductions thereof for any Reallocated Subordinated Transferor Principal
Collections and any adjustments with respect thereto pursuant to Section 3.05(a)
above on such Distribution Date) will be reduced by the amount of such excess.
In the event that such reduction would cause the Subordinated Transferor
Invested Amount to be a negative number, the Subordinated Transferor Invested
Amount (after giving effect to reductions thereof for any Reallocated
Subordinated Transferor Principal Collections and any adjustments with respect
thereto pursuant to Section 3.05(a) above) will be reduced to zero, and the
Collateral Invested Amount (after giving effect to any reduction thereof for any
Reallocated Collateral Investor Principal Collections and any adjustments
thereto pursuant to Section 3.05(a) above) shall be reduced by the amount by
which the Subordinated Transferor Invested Amount would have been reduced below
zero, but not by more than the Collateral Investor Loss Amount for such
Distribution Date (such reduction being a "COLLATERAL INVESTOR CHARGE-OFF").
(c) On or before each Distribution Date, the Servicer shall
calculate the Subordinated Transferor Loss Amount for such Distribution Date. If
on any Distribution Date, such Subordinated Transferor Loss Amount exceeds the
amount allocated to the Subordinated Transferor Certificateholders with respect
thereto pursuant to Section 3.04 with respect to such Distribution Date, the
Subordinated Transferor Invested Amount (after giving effect to any reduction
thereof for any Reallocated Subordinated Transferor Principal Collection and any
adjustments thereto pursuant to Sections 3.05(a) and 3.05(b) above) will be
reduced by the amount of such excess (such reduction being a "SUBORDINATED
TRANSFEROR CHARGE-OFF").
Section 3.06. SPREAD ACCOUNT. (a) The Servicer, for the
benefit of the Beneficiaries, shall establish and maintain in the United States,
in the name of the Trustee, on behalf of the Trust, a segregated trust account
with an institution which is and continues to be a Qualified Depository
Institution (which shall initially be the Trustee), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Beneficiaries (the "SPREAD ACCOUNT"). The Trustee, for the benefit of the
Beneficiaries, shall possess all right, title and interest in all funds on
deposit from time to time in the Spread Account and in all proceeds thereof.
Without limiting the rights of the Servicer set forth in Section 3.06(b)
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below, the Spread Account shall be under the sole dominion and control of the
Trustee for the benefit of the Beneficiaries. Except as expressly provided in
this Agreement, the Servicer agrees that it shall have no right to deduct from
any funds held in the Spread Account for any amount owed to it by the Trustee,
the Trust, the Transferor, any Originator or any Certificateholder. If at any
time the institution holding the Spread Account ceases to be a Qualified
Depository Institution the Transferor shall notify the Trustee, and the Trustee,
upon notice by the Servicer (or the Servicer on its behalf) shall promptly
establish a new Spread Account with a Qualified Depository Institution meeting
the conditions specified above, and shall transfer any cash or any investments
to such new Spread Account and, from the date such new Spread Account is
established, it shall be the "Spread Account". The Trustee, at the written
direction of the Servicer, shall make deposits to and withdrawals from the
Spread Account from time to time, at such time and for distributions pursuant to
Section 3.05 of amounts allocated pursuant to Sections 3.03(c) and 3.04 hereof.
(b) Funds on deposit in the Spread Account shall be invested
at the written direction of the Servicer by the Trustee in Permitted Investments
selected by the Servicer. All such Permitted Investments shall be held by the
Trustee for the benefit of the Beneficiaries. The Trustee shall maintain for the
benefit of the Beneficiaries possession of the negotiable instruments or
securities, if any, evidencing such Permitted Investments. Funds on deposit in
the Spread Account on any Distribution Date, after giving effect to any
withdrawals from the Spread Account on such Distribution Date, shall be invested
in such investments that will mature so that such funds will be available for
withdrawal on the following Distribution Date. No Permitted Investment shall be
disposed of prior to its maturity.
Section 3.07. RESERVE ACCOUNT. (a) The Servicer, for the
benefit of the Beneficiaries, shall establish and maintain in the United States,
in the name of the Trustee, on behalf of the Trust, a segregated trust account
with an institution which is and continues to be a Qualified Depository
Institution (which shall initially be the Trustee), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Beneficiaries (the "RESERVE ACCOUNT"). The Trustee, for the benefit of the
Beneficiaries, shall possess all right, title and interest in all funds on
deposit from time to time in the Reserve Account and in all proceeds thereof.
Without limiting the rights of the Servicer set forth in Section 3.07(b) below,
the Reserve Account shall be under the sole dominion and control of the Trustee
for the benefit of the Beneficiaries. Except as expressly provided in this
Agreement, the Servicer agrees that it shall have no right to deduct from any
funds held in the Reserve Account for any amount owed to it by the Trustee, the
Trust, the Transferor, any Originator or any Certificateholder. If at any time
the institution holding the Reserve Account ceases to be a Qualified Depository
Institution the Transferor shall notify the Trustee, and the Trustee, upon
notice by the Servicer (or the Servicer on its behalf) shall promptly establish
a new Reserve Account with a Qualified Depository Institution meeting the
conditions specified above, and
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shall transfer any cash or any investments to such new Reserve Account and, from
the date such new Reserve Account is established, it shall be the "Reserve
Account." The Trustee, at the written direction of the Servicer, shall make
deposits to and withdrawals from the Reserve Account from time to time, at such
time and for distributions pursuant to Section 3.05 of amounts allocated
pursuant to Section 3.03 hereof.
(b) Funds on deposit in the Reserve Account shall be invested
at the written direction of the Servicer by the Trustee in Permitted Investments
selected by the Servicer. All such Permitted Investments shall be held by the
Trustee for the benefit of the Beneficiaries. The Trustee shall maintain for the
benefit of the Beneficiaries possession of the negotiable instruments or
securities, if any, evidencing such Permitted Investments. Funds on deposit in
the Reserve Account on any Distribution Date, after giving effect to any
withdrawals from the Reserve Account on such Distribution Date, shall be
invested in such investments that will mature so that such funds will be
available for withdrawal on the following Distribution Date. No Permitted
Investment shall be liquidated prior to its maturity.
Section 3.08. INTEREST RATE SWAPS AND CAPS. (a) The Servicer
hereby represents that the Parent has obtained the Swap Agreement for the
benefit of the Class A Certificateholders and the Collateral Investor
Certificateholders in an aggregate notional amount of at least $115,000,000. The
Swap Agreement shall entitle the Parent to receive monthly, on or prior to the
Deposit Date, the Swap Payment, if any, as set forth therein.
(b) Upon the effectiveness of any Replacement Swap Agreement,
the Swap Agreement shall terminate and the Swap Provider shall be released of
all future obligations thereunder, PROVIDED that such Swap Provider shall not be
released from any obligations which have previously accrued thereunder and shall
continue to be obligated to perform such obligations.
(c) The Servicer hereby represents that it has obtained the
Cap Agreement for the benefit of the Class A Certificateholders and the
Collateral Investor Certificateholders in an aggregate notional amount of at
least $10,000,000. The Cap Agreement shall entitle the Trust to receive monthly,
on or prior to the Deposit Date, the Cap Payment, if any, as set forth therein.
(d) Upon the effectiveness of any Replacement Cap Agreement,
the Cap Agreement shall terminate and the Cap Provider shall be released of all
future obligations thereunder, PROVIDED that such Cap Provider shall not be
released from any obligations which have previously accrued thereunder and shall
continue to be obligated to perform such obligations.
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(e) The Servicer covenants and agrees to replace (i) any Swap
Provider who shall have failed to make any Swap Payment within five calendar
days of when such payment is due with a Replacement Swap Provider and (ii) any
Cap Provider who shall have failed to make any Cap Payment within five days of
when such payment is due with a Replacement Cap Provider, in each case the short
term debt obligations of which are rated at least A-1+ by Standard & Poor's and
P-1 by Xxxxx'x, within 30 calendar days of when such payment, as the case may
be, is due.
Section 3.09. PRINCIPAL COLLECTION ACCOUNT. (a) The Servicer,
for the benefit of the Beneficiaries, shall establish and maintain in the United
States, in the name of the Trustee, on behalf of the Trust, a segregated trust
account with an institution which is and continues to be a Qualified Depository
Institution (which shall initially be the Trustee), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Beneficiaries (the "PRINCIPAL COLLECTION ACCOUNT"). The Trustee, for the
benefit of the Beneficiaries, shall possess all right, title and interest in all
funds on deposit from time to time in the Principal Collection Account and in
all proceeds thereof. Without limiting the rights of the Servicer set forth in
Section 3.09(b) below, the Principal Collection Account shall be under the sole
dominion and control of the Trustee for the benefit of the Beneficiaries. Except
as expressly provided in this Agreement, the Servicer agrees that it shall have
no right to deduct from any funds held in the Principal Collection Account for
any amount owed to it by the Trustee, the Trust, the Transferor, any Originator
or any Certificateholder. If at any time the institution holding the Principal
Collection Account ceases to be a Qualified Depository Institution, the
Transferor shall notify the Trustee, and the Trustee, upon notice by the
Servicer (or the Servicer on its behalf) shall promptly establish a new
Principal Collection Account with a Qualified Depository Institution meeting the
conditions specified above, and shall transfer any cash or any investments to
such new Principal Collection Account and, from the date such new Principal
Collection Account is established, it shall be the "Principal Collection
Account." The Trustee, at the written direction of the Servicer, shall make
deposits to and withdrawals from the Principal Collection Account from time to
time, at such time and for distributions pursuant to Section 3.01 and for
distributions of amounts allocated pursuant to Section 3.02(b).
(b) Funds on deposit in the Principal Collection Account shall
be invested at the written direction of the Servicer by the Trustee in Permitted
Investments selected by the Servicer. All such Permitted Investments shall be
held by the Trustee for the benefit of the Beneficiaries. The Trustee shall
maintain for the benefit of the Beneficiaries possession of the negotiable
instruments or securities, if any, evidencing such Permitted Investments. Funds
on deposit in the Principal Collection Account on any Distribution Date, after
giving effect to any withdrawals from the Principal Collection Account on such
Distribution Date, shall be invested
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in such investments that will mature so that such funds will be available for
withdrawal on the following Distribution Date. No Permitted Investment shall be
liquidated prior to its maturity.
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 4.01. SERVICER DEPOSITS. On or before each Deposit
Date in each Due Period, the Transferor shall deposit or cause to be deposited
in the Concentration Account funds in an amount equal to the lesser of (x) the
aggregate Finance Charge Shortfall for such Due Period and (y) the Available
Principal Collections for such Due Period, it being understood that any
underestimates or overestimates by the Servicer in making such deposit shall be
promptly corrected.
Section 4.02. DISTRIBUTIONS. (a) On each Distribution Date,
the Trustee shall distribute (in accordance with the certificate delivered by
the Servicer to the Trustee pursuant to Section 3.04(b) of the Pooling and
Servicing Agreement) to itself (other than as provided in Section 12.03 of the
Pooling and Servicing Agreement respecting a final distribution) from the
Concentration Account, all amounts that have been allocated to the Trustee
pursuant to Article III by wire transfer or other appropriate means.
(b) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to Section 3.04(b) of the Pooling and Servicing Agreement) to the
Program Agent (other than as provided in Section 12.03 of the Pooling and
Servicing Agreement respecting a final distribution) from the Concentration
Account, all amounts that have been allocated to the Program Agent pursuant to
Article III by wire transfer to the Program Agent's Account (or such other
account as may be specified in writing by the Program Agent to the Trustee).
(c) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to Section 3.04(b) of the Pooling and Servicing Agreement) to each
Class A Certificateholder of record on the immediately preceding Record Date
(other than as provided in Section 12.03 of the Pooling and Servicing Agreement
respecting a final distribution) such Certificateholder's PRO RATA share (based
on the aggregate Undivided Trust Interests represented by Class A Certificates
held by such Certificateholder) from the Concentration Account, all amounts that
have been allocated to the Class A Certificateholders pursuant to Article III by
wire transfer to each Class A Certificateholder, to an account specified by such
Certificateholder to the Trustee in writing.
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(d) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to Section 3.04(b) of the Pooling and Servicing Agreement) to each
Collateral Investor Certificateholder of record on the immediately preceding
Record Date (other than as provided in Section 12.03 of the Pooling and
Servicing Agreement respecting a final distribution) such Certificateholder's
PRO RATA share (based on the aggregate Undivided Trust Interests represented by
Collateral Investor Certificates held by such Certificateholder) from the
Concentration Account, all amounts that have been allocated to the Collateral
Investor Certificateholders pursuant to Article III by wire transfer to each
Collateral Investor Certificateholder, to an account specified by such
Certificateholder to the Trustee in writing.
(e) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the Trustee
pursuant to Section 3.04(b) of the Pooling and Servicing Agreement) to each
Subordinated Transferor Certificateholder of record on the immediately preceding
Record Date (other than as provided in Section 12.03 of the Pooling and
Servicing Agreement respecting a final distribution) such Certificateholder's
PRO RATA share (based on the aggregate Undivided Trust Interests represented by
the Subordinated Transferor Certificate held by such Certificateholder) from the
Concentration Account, all amounts that have been allocated to the Subordinated
Transferor Certificateholders pursuant to Article III by wire transfer to each
Subordinated Transferor Certificateholder, to an account specified by such
Certificateholder to the Trustee in writing.
Section 4.03. ANNUAL CERTIFICATEHOLDERS' TAX STATEMENT. On or
before January 31 of each calendar year, beginning with calendar year 1998, the
Trustee shall distribute to each Person who at any time during the preceding
calendar year was a Series 1997-1 Certificateholder, a statement prepared by the
Servicer containing the information required to be contained in the Monthly
Servicer's Report, aggregated for such calendar year or the applicable portion
thereof during which such Person was a Series 1997-1 Certificateholder, together
with such other customary information (consistent with the treatment of the
Class A Certificates and the Collateral Investor Certificates as debt) as the
Servicer deems necessary or desirable to enable the Series 1997-1
Certificateholders to prepare their tax returns. The Servicer will provide such
information to the Trustee as soon as possible after January 1 of each calendar
year. Such obligations of the Trustee shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in effect.
Section 4.04. TRANSFEROR'S OR SERVICER'S FAILURE TO MAKE A
DEPOSIT OR PAYMENT. If the Servicer or the Transferor fails to make, or give
instructions to make, any payment or deposit required to be made or given by the
Servicer or Transferor, respectively, at the time
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specified in the Pooling and Servicing Agreement (including applicable grace
periods), the Trustee shall make such payment or deposit from the applicable
account without instruction from the Servicer or Transferor. The Trustee shall
be required to make any such payment, deposit or withdrawal hereunder only to
the extent that the Trustee has sufficient information to allow it to determine
the amount thereof; PROVIDED, HOWEVER, that the Trustee shall in all cases be
deemed to have sufficient information to determine the amount of interest
payable to the Investor Certificateholders on each Distribution Date. The
Servicer shall, upon request of the Trustee, promptly provide the Trustee with
all information necessary to allow the Trustee to make such payment, deposit or
withdrawal. Such funds or the proceeds of such withdrawal shall be applied by
the Trustee in the manner in which such payment or deposit should have been made
by the Transferor or the Servicer, as the case may be.
ARTICLE V
COVENANTS
Section 5.01. COVENANTS OF THE SERVICER. The Servicer hereby
covenants that:
(a) The Servicer will furnish to the Program Agent, promptly
after delivery to the Trustee, all notices, reports and other
information given to the Trustee under the Pooling and Servicing
Agreement other than the Daily Reports required thereunder.
(b) At any time and from time to time during the Servicer's
regular business hours, on reasonable prior notice and for a purpose
reasonably related to the Pooling and Servicing Agreement, the Servicer
shall, in response to any reasonable request of the Trustee or the
Program Agent, permit the Trustee or the Program Agent or their agents
or representatives (which may be an independent accounting firm), (i)
to examine and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes, microfiche
and disks) in the possession or under the control of the Servicer
relating to the Trust Assets, the Receivables and the Accounts and (ii)
to visit the offices and properties of the Servicer for the purpose of
examining such materials and to discuss matters relating to the Trust
Assets, the Receivables and the Accounts or the Servicer's performance
under any Transaction Document with any of the officers or employees of
the Servicer having knowledge thereof. The Parent hereby agrees to pay
all reasonable expenses incurred by the Trustee and the Program Agent
in exercising its rights under this Section 5.01. The Servicer agrees
that the Program Agent will have the right to request reasonable
changes in the annual servicing report furnished by the independent
public accountants pursuant to Section 3.06 of the Pooling and
Servicing Agreement which are reasonably
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related to the Trust Assets and the matters contemplated by the
Transaction Documents, and the Servicer agrees to use good faith
reasonable efforts to obtain the independent public accountants'
agreement to such changes.
Section 5.02. COVENANTS OF THE TRANSFEROR. The Transferor
hereby covenants and agrees to deliver to the Program Agent (i) within three
Business Days of the Effective Date, a copy of the charter of the Parent,
certified by the Secretary of State of the jurisdiction of its incorporation as
being a true and correct copy thereof as of such date and (ii) as soon as
practicable after each such certificate is available from the Secretary of State
of Ohio, a certificate from such Secretary of State stating that each of the
Parent and the Servicer, respectively, has paid all franchise taxes to the date
of such certificate.
ARTICLE VI
SERIES 1997-1 EARLY AMORTIZATION EVENTS
Section 6.01. SERIES EARLY AMORTIZATION EVENTS. If an Early
Amortization Event or any one of the following events shall occur (each, a
"SERIES EARLY AMORTIZATION EVENT"):
(a) any Purchase Agreement shall for any reason cease to be in
full force and effect or an Early Termination (as defined therein)
shall occur; or
(b) (i) any purchase of any Receivables or other Trust Assets
by the Transferor under any Purchase Agreement shall cease to create a
valid sale, transfer and assignment to the Transferor of all right,
title and interest of the Originator in and to such Trust Assets and
the proceeds thereof, or (ii) any Transfer of any Trust Asset on any
date shall for any reason cease to create a valid and perfected first
priority sale, Transfer and assignment to the Trust of all right, title
and interest of the Transferor in and to such Trust Assets and the
proceeds thereof or, if such Transfer does not constitute such a sale,
Transfer and assignment, cease to create a valid and perfected first
priority security interest in such Trust Assets and the proceeds
thereof, or (iii) the Investor Certificates delivered hereunder shall
for any reason (other than due to the acts or omissions of the Investor
Certificateholders) cease to evidence the transfer to the Investor
Certificateholders of, or the Investor Certificateholders shall
otherwise cease to have, a beneficial interest in a trust owning, or
the Trustee on behalf of the Trust having a perfected first priority
security interest in, the Trust Assets now existing and hereafter
arising and the proceeds thereof to the extent of their respective
Undivided Trust Interests; or
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(c) a Servicer Default shall have occurred and be continuing;
or
(d) the Servicer shall have resigned and shall not have been
replaced, in each case in accordance with the terms of the Pooling and
Servicing Agreement; or
(e) the Parent shall fail to observe or perform any covenant
or agreement (within any applicable cure period) applicable to it
contained in the Parent Undertaking Agreement, or the Parent
Undertaking Agreement shall cease to be in effect or the Parent shall
so assert in writing; or
(f) any material adverse change shall occur in the
collectibility of the Receivables taken as a whole (other than as a
result of the default of one or more Obligors on the payment thereof)
or in the financial condition of the Transferor, the Parent, the
Servicer or any Originator, or in the ability of any of them or any
Originator to perform its obligations under any Transaction Document;
or
(g) any Transaction Document shall cease to be in full force
and effect; or
(h) (i) any Plan Event shall have occurred, (ii) the
Transferor or any ERISA Affiliate shall have withdrawn from a
Multiemployer Plan, or (iii) any Multiemployer Plan shall have been
terminated or reorganized or become insolvent, and as a result of one
or more such events the Transferor or any ERISA Affiliate has incurred
or is reasonably expected to incur liability in excess of $500,000; or
(i) with respect to any Originator and the related Purchase
Agreement, (i) any Plan Event (as defined in such Purchase Agreement)
shall have occurred, (ii) such Originator or any ERISA Affiliate (as
defined in such Purchase Agreement) shall have withdrawn from a
Multiemployer Plan (as defined in such Purchase Agreement), or (iii)
any such Multiemployer Plan shall have been terminated or reorganized
or become insolvent, and as a result of one or more such events such
Originator or any such ERISA Affiliate has incurred or is reasonably
expected to incur liability in excess of $500,000; or
(j) the Parent shall cease to be the direct or indirect
beneficial owner of at least 100% of the outstanding Voting Stock of
the Transferor; or
(k) the rating of the senior long-term debt obligations of the
Parent by Moody's or Standard & Poor's shall fall below B2 or B,
respectively or, if no such
SERIES 1997-1 SUPPLEMENT
42
38
public ratings are available, in the Program Agent's sole judgment in
accordance with its customary practices, the deemed equivalent of such
ratings; or
(l) the Excess Spread Percentage for any three consecutive Due
Periods is reduced to a rate of less than 1%; or
(m) the Class A Invested Amount shall not be paid in full on
the Class A Expected Final Payment Date or the Collateral Invested
Amount shall not be paid in full on the Collateral Investor Expected
Final Payment Date; or
(n) the failure on the part of a Swap Provider to make a Swap
Payment, within five calendar days of the date on which such Swap
Payment is due; or
(o) the failure on the part of a Cap Provider to make a Cap
Payment within five calendar days of the date on which such Cap Payment
is due; or
(p) the failure to maintain in full force and effect at all
times the Swap Agreement and Cap Agreement, in a combined aggregate
notional amount of at least $125,000,000, with a Swap Provider and a
Cap Provider, respectively, the short term debt obligations of each of
which are rated at least A-1+ by Standard & Poor's and P-1 by Moody's,
PROVIDED that if, on any date, any such ratings fall below A-1+ or P-1,
as the case may be, such Swap Agreement or Cap Agreement, as the case
may be, shall be replaced with a Replacement Swap Agreement with a
Replacement Swap Provider or a Replacement Cap Agreement with a
Replacement Cap Provider, respectively, the short term debt obligations
of which are rated at least A-1+ by Standard & Poor's and P-1 by
Moody's, within 30 calendar days of such date; or
(q) the Subordinated Transferor Invested Amount is less than
$11,000,000; or
(r) the Net Loss Percentage for any three consecutive Due
Periods exceeds 10%; or
(s) the Dilution Ratio for any three consecutive Due Periods
exceeds 8%;
then, if a Trust Early Amortization Event pursuant to Section 9.01(d) or (f) of
the Pooling and Servicing Agreement shall have occurred, a "Series Early
Amortization Event" shall occur without any notice, demand, protest or other
requirement of any kind immediately upon the occurrence of such event, and, if
any of the other events set forth in any of the paragraphs above shall have
occurred, either the Trustee or the Program Agent (unless otherwise directed
SERIES 1997-1 SUPPLEMENT
43
39
by a Majority in Interest of Series 1997-1 Certificateholders) or a Majority in
Interest of Series 1997-1 Certificateholders, by notice then given in writing to
the Transferor and the Servicer (and to the Trustee if given by such Majority in
Interest), may declare (PROVIDED that such Series Early Amortization Event shall
not have been remedied) that a "Series Early Amortization Event" has occurred as
of the date of such notice.
Section 6.02. TRUSTEE'S MONITORING OBLIGATIONS. The Trustee
shall examine each Monthly Servicer's Report delivered thereunder for positive
indications that an Early Amortization Event may have occurred pursuant to
Section 9.01 of the Pooling and Servicing Agreement or Section 6.01 hereof and
shall notify the Program Agent if such an Early Amortization Event is indicated.
ARTICLE VII
MISCELLANEOUS
Section 7.01. REASSIGNMENT AND TRANSFER TERMS. The Investor
Certificates shall be subject to retransfer to the Transferor at its option, in
accordance with the terms specified in Section 12.02(a) of the Pooling and
Servicing Agreement, on any Distribution Date on or after the Distribution Date
on which the Series Invested Amount is less than or equal to 15% of the Initial
Series Invested Amount. The deposit required in connection with any such
repurchase shall be equal to the sum of (x) the Series Invested Amount PLUS (y)
all accrued and unpaid interest on the Investor Certificates PLUS (z) all
accrued and unpaid amounts owing in respect of the fees set forth in the Fee
Letter and all other accrued costs and expenses owing to any of the
Beneficiaries under any of the Transaction Documents, in each case through the
day preceding the Distribution Date on which the repurchase occurs.
Section 7.02. ASSIGNMENT BY CRC AND LIQUIDITY PROVIDERS. The
Transferor and the Servicer agree to execute or obtain such other documentation
as may be reasonably requested by CRC or any Liquidity Provider in order to
effectuate any assignment under Section 6.01 of the Certificate Purchase
Agreement.
Section 7.03. NO ASSIGNABILITY BY TRANSFEROR AND SERVICER;
TRANSFEROR'S LIABILITY. Neither the Servicer nor the Transferor may assign any
of its rights and obligations hereunder or any interest herein (including any
Subordinated Transferor Certificate) without the prior written consent of CRC
and the Program Agent.
Section 7.04. RATIFICATION OF POOLING AND SERVICING AGREEMENT.
As supplemented by this Supplement, the Pooling and Servicing Agreement is in
all respects
SERIES 1997-1 SUPPLEMENT
44
40
ratified and confirmed and the Pooling and Servicing Agreement as so
supplemented by this Supplement shall be read, taken and construed as one and
the same instrument.
Section 7.05. AMENDMENTS. All amendments to this Series 1997-1
Supplement shall be made in accordance with the provisions of the Pooling and
Servicing Agreement. In addition, no amendments may be made to this Series
1997-1 Supplement the effect of which would be to (i) change the Class A Monthly
Interest, Collateral Investor Monthly Interest, Subordinated Transferor Monthly
Interest, Excess Spread Percentage, Net Loss Percentage, Dilution Ratio,
Revolving Period, the Series 1997-1 Monthly Trustee's Fee, the Series 1997-1
Monthly Program Fees, Reserve Account Required Balance or Series Early
Amortization Events, (ii) reduce in any manner the amount of, or delay the
timing of, distributions to be made to any Series 1997-1 Certificateholder or
allocations or deposits of amounts to be so distributed, (iii) cause any adverse
tax effect (taking into account any offsetting non-tax benefit therefrom) for
any Series 1997-1 Certificateholder or (iv) adversely affect in any material
respect the interests of any Series 1997-1 Certificateholder, in each case
unless a Series 1997-1 Majority in Interest and, in the case of clause (iii),
each affected Series 1997-1 Certificateholder, has consented in writing.
Section 7.06. NO OBLIGATIONS UNDER SWAP AGREEMENT. The parties
hereto hereby agree that no Beneficiary will have any obligations, duties or
other liabilities under or in connection with the Swap Agreement.
Section 7.07. COUNTERPARTS. This Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Supplement by telecopier shall be effective as delivery of a manually executed
counterpart of this Supplement.
Section 7.08. GOVERNING LAW, ETC. (a) GOVERNING LAW. THIS
SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(b) JURISDICTION. (i) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive general jurisdiction of any New York State court or federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Supplement or any of the other Transaction Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent
SERIES 1997-1 SUPPLEMENT
45
41
permitted by law, in such federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Supplement shall affect any right that any
party may otherwise have to bring any action or proceeding relating to this
Supplement or any of the other Transaction Documents in the courts of any
jurisdiction.
(ii) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Supplement or
any of the other Transaction Documents to which it is a party in any New York
State or federal court. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) CONSENT TO SERVICE OF PROCESS. Each party to this
Supplement irrevocably consents to service of process by personal delivery,
certified mail, postage prepaid or overnight courier. Nothing in this Supplement
will affect the right of any party to this Supplement to serve process in any
other manner permitted by law.
(d) WAIVER OF JURY TRIAL. Each party to this Supplement waives
any right to a trial by jury in any action or proceeding to enforce or defend
any rights under or relating to this Supplement, any other Transaction Document
or any amendment, instrument, document or agreement delivered or which may in
the future be delivered in connection herewith or therewith or arising from any
course of conduct, course of dealing, statements (whether oral or written),
actions of any of the parties hereto and the Liquidity Providers or any other
relationship existing in connection with this Supplement or any other
Transaction Document, and agrees that any such action or proceeding shall be
tried before a court and not before a jury.
Section 7.09. NO PETITION. (a) The Transferor, the Servicer
and the Trustee, by entering into this Supplement and each Series 1997-1
Certificateholder, by accepting a Series 1997-1 Certificate, hereby covenant and
agree that they will not at any time institute against the Trust, or join in any
institution against the Trust of, any bankruptcy proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Investor Certificates, this Supplement or any other
Transaction Document.
SERIES 1997-1 SUPPLEMENT
46
42
(b) The Servicer and the Trustee, by entering into this
Supplement and each Series 1997-1 Certificateholder, by accepting a Series
1997-1 Certificate, hereby covenant and agree that they will not at any time
institute against the Transferor, or join in any institution against the
Transferor of, any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating to
the Investor Certificates, this Supplement or any other Transaction Document.
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Series 1997-1 Supplement to be duly executed by their
respective officers as of the day and year first above written.
THE EL-BEE RECEIVABLES CORPORATION,
as Transferor
By:
------------------------------------
Name:
Title:
THE EL-BEE CHARGIT CORP.,
as Servicer
By:
------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Trustee
By:
------------------------------------
Name:
Title:
SERIES 1997-1 SUPPLEMENT
47
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
----------- --, ----
REGISTERED Variable Principal Amount*
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
Certificate No. __
SERIES 1997-1
CLASS A FLOATING RATE CERTIFICATE
THIS CERTIFICATE REPRESENTS AN
UNDIVIDED INTEREST IN CERTAIN ASSETS OF THE
XXXXX-XXXXXXX MASTER TRUST
the corpus of which consists primarily of certain receivables generated from
time to time by The Xxxxx-Xxxxxxx Stores Corp. (the "COMPANY") which are then
purchased by The El-Bee Chargit Corp. ("CHARGIT") (together, the "ORIGINATORS")
and then purchased by The El-Bee Receivables Corporation (the "TRANSFEROR"),
from the Originators, which in turn transfers and assigns such receivables to
The Xxxxx-Xxxxxxx Master Trust pursuant to the Pooling and Servicing Agreement,
dated as of December 30, 1997, among the Transferor, Chargit, as Servicer, and
Bankers Trust Company, as Trustee (as amended, supplemented or otherwise
modified from time to time, the "POOLING AND SERVICING AGREEMENT"; capitalized
terms used herein and not otherwise defined herein are used herein as therein
defined). This Certificate (a "CLASS A CERTIFICATE") does not represent a
recourse obligation, and is not guaranteed by, the Transferor, the Company,
Chargit or any Affiliate of any of them.
---------------------------
* Denominations of $5,000,000 and multiples of $1,000 in excess thereof.
SERIES 1997-1 SUPPLEMENT
48
This certifies that ____________________ (the "CLASS A
CERTIFICATEHOLDER") is the registered owner of a fractional undivided interest
in the assets of The Xxxxx-Xxxxxxx Master Trust (the "TRUST") created pursuant
to the Pooling and Servicing Agreement. Unless the certificate of authentication
hereon has been executed by or on behalf of the Trustee by manual or facsimile
signature, this Class A Certificate shall not be entitled to any benefit under
the Transaction Documents or be valid for any purpose.
Each purchaser, by its purchase of this Class A Certificate,
represents, acknowledges and agrees that: (1) it is purchasing "restricted"
securities which have not been and will not be registered under the Securities
Act; (2) if it should decide to dispose of any of such securities, it will not
offer, sell, transfer, pledge, hypothecate or otherwise dispose of any of such
securities except, (A) pursuant to Rule 144A under the Securities Act, (B) to a
sophisticated institutional investor that is an "accredited investor" (within
the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act) in a
transaction not involving any general solicitation or advertising as evidenced
by a certificate of the proposed transferor thereof delivered to the Trustee (in
the form attached hereto) or (C) pursuant to any other exemption from the
registration requirements of such Securities Act in each case in accordance with
any applicable state laws governing the offer or sale of securities; and (3) for
federal, state and local income and franchise tax law purposes, this Class A
Certificate is intended to be indebtedness of the Transferor secured by the
Receivables and the purchaser shall treat and report this Class A Certificate as
indebtedness of the Transferor for such purposes.
The corpus of the Trust consists of (i) a portfolio of
Receivables arising in connection with the Accounts identified under the Pooling
and Servicing Agreement from time to time, (ii) funds collected or to be
collected from Obligors in respect of the Receivables, (iii) all funds which are
from time to time on deposit in the Concentration Account, the Collection
Accounts and any other account or accounts held for the benefit of the
Certificateholders and (iv) all other assets and interests constituting the
Trust Assets.
This Class A Certificate is issued under and is subject to the
terms, provisions and conditions of the Transaction Documents, to which
Transaction Documents the Class A Certificateholder, by virtue of its acceptance
hereof, assents and is bound.
Although a summary of certain provisions of the Transaction
Documents is set forth below, this Class A Certificate does not purport to
summarize the Transaction Documents and is qualified in its entirety by the
terms and provisions of the Transaction Documents and reference is made to the
Transaction Documents for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee, the Servicer and the other parties bound
by the
SERIES 1997-1 SUPPLEMENT
49
A-1-3
Transaction Documents. A copy of the Transaction Documents may be requested by
writing to the Trustee at Xxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust and Agency Group/Structured Finance, at the expense
of the Transferor.
The Series 1997-1 Certificates are issued in three Classes,
the Class A Certificates (of which this Class A Certificate is one), the
Collateral Investor Certificates, which are subordinated to the Class A
Certificates as described in the Transaction Documents, and the Subordinated
Transferor Certificate, which is subordinated to the Class A Certificates and
the Collateral Investor Certificates as described in the Transaction Documents.
In addition to the Series 1997-1 Certificates, the Transferor will issue an
Exchangeable Transferor Certificate pursuant to the Transaction Documents, which
will represent a fractional undivided interest in the Trust.
The Class A Certificates collectively represent a fractional
undivided interest in the Trust and the right to receive Collections and other
amounts, to the extent necessary to make the required payments with respect to
the Class A Certificates, at the times and in the amounts specified in the
Transaction Documents from time to time.
The Class A Invested Amount with respect to any date will be
determined as set forth in the Series 1997-1 Supplement. The Class A Invested
Amount and the amount of any Increases and distributions of principal to the
Class A Certificateholders shall be recorded on the Certificate Register.
Interest on the unpaid Class A Invested Amount outstanding
from time to time shall accrue at a rate per annum equal to the Class A
Certificate Rate in effect from time to time applicable to this Class A
Certificate and shall become due on the dates specified in the Transaction
Documents for distributions of amounts on account of such interest until the
Class A Invested Amount shall have been reduced to zero. Interest with respect
to the Class A Certificates shall be distributed to the Class A
Certificateholders on each Distribution Date. Payment of any installment of
interest on Class A Certificates will be made or caused to be made by the
Trustee to the person in whose name such Class A Certificate is registered at
the close of business on the Record Date. Payment of such interest will be made
by wire transfer to a designated account maintained by the Class A
Certificateholder; PROVIDED that such Class A Certificateholder has provided the
Trustee with the wire transfer designation, in writing, received by the Trustee
on or prior to the relevant Record Date. In the absence of such timely wire
transfer instructions, payment will be made by check to the address of record of
the Class A Certificateholder.
Payment of principal in reduction of this Class A Certificates
will be made by wire transfer to a designated account maintained by the Class A
Certificateholder. The final
SERIES 1997-1 SUPPLEMENT
50
A-1-4
distribution on a Class A Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of a Class A Certificate at the Corporate Trust Office of the Trustee.
The Class A Certificates do not represent an obligation of, or
an interest in, the Transferor, the Servicer, the Company or any Affiliate of
any of them. This Class A Certificate is limited in right of payment to certain
Collections of the Receivables (and certain other amounts), all as more
specifically set forth hereinabove and in the Transaction Documents.
The Class A Certificates are only issuable in registered form
without coupons in denominations of $5,000,000 and integral multiples of $1,000
in excess thereof. Class A Certificates are transferable upon surrender of the
Class A Certificate, and any other required documents, to an office of the
Trustee, where newly executed and authenticated Class A Certificates in the name
of the designated transferee will be delivered.
As provided in the Transaction Documents and subject to
certain limitations therein set forth, this Class A Certificate is exchangeable
for new Class A Certificates of the same Series evidencing a like aggregate
fractional undivided interest in the Trust, as requested by the Class A
Certificateholder surrendering this Class A Certificate. No service charge will
be imposed for any such transfer or exchange, but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
This Class A Certificate shall be construed in accordance with
and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Transferor has caused this Class A
Certificate to be duly executed.
THE EL-BEE RECEIVABLES
CORPORATION
By:
-------------------------------
Name:
Title:
SERIES 1997-1 SUPPLEMENT
51
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the
within-mentioned Pooling and Servicing Agreement.
Dated: __________ __, ____
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: OR
-------------------------------- ----------------------------------
Authorized Signer as Authenticating Agent for the
Trustee
By:
----------------------------------
Authorized Signer
SERIES 1997-1 SUPPLEMENT
52
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned Certificateholder hereby
sell(s), assign(s) and transfer(s) unto
____________________________________________________, whose taxpayer
identification number is _________________, and whose address, including postal
zip code, is ___________________________, the within Security capitalized terms
used herein and not otherwise defined herein are used herein as defined therein)
and all rights thereunder, hereby irrevocably constituting and appointing
_______________ attorney-in-fact to transfer said Security on the books of the
Trustee with full power of substitution in the premises.
In connection with the transfer of this security, the
undersigned holder certifies that:
[CHECK ONE]
|_| (A) This security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) in compliance with the exemption from
registration under the Securities Act provided by Rule 144A.
|_| (B) This Security is being transferred to a sophisticated
institutional investor which is an "accredited investor"
(within the meaning of Rule 501(a) (1) (2), (3) or (7) under
the Securities Act) in a transaction not involving any general
solicitation or advertising.
|_| (C) This Security is being transferred in compliance with another
exemption from registration under the Securities Act.
Dated:__________________ Name: _________________________
By: _________________________
Title: _________________________
NOTICE: The signature of the holder of this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without any
change whatsoever.
* If Box C is checked, the Trustee shall receive from the proposed
transferee, prior to the Trustee being required to effect the transfer
of this Security, a written opinion of
SERIES 1997-1 SUPPLEMENT
53
counsel stating that such transfer is exempt from the registration
requirements of the Securities Act and the basis therefor.
SIGNATURE GUARANTEED
------------------------------------------
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE TRUSTEE SHALL NOT BE OBLIGATED TO
REGISTER THIS SECURITY IN THE NAME OF ANY PERSON OTHER THAN THE HOLDER HEREOF
UNLESS AND UNTIL THE CONDITIONS TO ANY SUCH TRANSFER OF REGISTRATION SET FORTH
HEREIN, ON THE FACE HEREOF AND IN THE TRANSACTION DOCUMENTS, SHALL HAVE BEEN
SATISFIED.
SERIES 1997-1 SUPPLEMENT
54
EXHIBIT A-2
FORM OF COLLATERAL INVESTOR CERTIFICATE
----------- --, ----
REGISTERED Variable Principal Amount*
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
Certificate No. __
SERIES 1997-1
COLLATERAL INVESTOR FLOATING RATE CERTIFICATE
THIS CERTIFICATE REPRESENTS AN
UNDIVIDED INTEREST IN CERTAIN ASSETS OF THE
XXXXX-XXXXXXX MASTER TRUST
the corpus of which consists primarily of certain receivables generated from
time to time by The Xxxxx-Xxxxxxx Stores Corp. (the "COMPANY") which are then
purchased by The El-Bee Chargit Corp. ("CHARGIT") (together, the "ORIGINATORS")
and then purchased by The El-Bee Receivables Corporation (the "TRANSFEROR"),
from the Originators, which in turn transfers and assigns such receivables to
The Xxxxx-Xxxxxxx Master Trust pursuant to the Pooling and Servicing Agreement,
dated as of December 30, 1997, among the Transferor, Chargit, as Servicer, and
Bankers Trust Company, as Trustee (as amended, supplemented or otherwise
modified from time to time, the "POOLING AND SERVICING AGREEMENT"; capitalized
terms used herein and not otherwise defined herein are used herein as therein
defined). This Certificate (a
--------------------------
* Denominations of $5,000,000 and multiples of $1,000 in excess thereof.
SERIES 1997-1 SUPPLEMENT
55
A-2-2
"COLLATERAL INVESTOR CERTIFICATE") does not represent a recourse obligation, and
is not guaranteed by, the Transferor, the Company, Chargit or any Affiliate of
any of them.
This certifies that ____________________ (the "COLLATERAL
INVESTOR CERTIFICATEHOLDER") is the registered owner of a fractional undivided
interest in the assets of The Xxxxx-Xxxxxxx Master Trust (the "TRUST") created
pursuant to the Pooling and Servicing Agreement. Unless the certificate of
authentication hereon has been executed by or on behalf of the Trustee by manual
or facsimile signature, this Collateral Investor Certificate shall not be
entitled to any benefit under the Transaction Documents or be valid for any
purpose.
Each purchaser, by its purchase of this Collateral Investor
Certificate, represents, acknowledges and agrees that: (1) it is purchasing
"restricted" securities which have not been and will not be registered under the
Securities Act; (2) if it should decide to dispose of any of such securities, it
will not offer, sell, transfer, pledge, hypothecate or otherwise dispose of any
of such securities except, (A) pursuant to Rule 144A under the Securities Act,
(B) to a sophisticated institutional investor that is an "accredited investor"
(within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities
Act) in a transaction not involving any general solicitation or advertising as
evidenced by a certificate of the proposed transferor thereof delivered to the
Trustee (in the form attached hereto) or (C) pursuant to any other exemption
from the registration requirements of such Securities Act in each case in
accordance with any applicable state laws governing the offer or sale of
securities; and (3) for federal, state and local income and franchise tax law
purposes, this Collateral Investor Certificate is intended to be indebtedness of
the Transferor secured by the Receivables and the purchaser shall treat and
report this Collateral Investor Certificate as indebtedness of the Transferor
for such purposes.
The corpus of the Trust consists of (i) a portfolio of
Receivables arising in connection with the Accounts identified under the Pooling
and Servicing Agreement from time to time, (ii) funds collected or to be
collected from Obligors in respect of the Receivables, (iii) all funds which are
from time to time on deposit in the Concentration Account, the Collection
Accounts and any other account or accounts held for the benefit of the
Certificateholders and (iv) all other assets and interests constituting the
Trust Assets.
This Collateral Investor Certificate is issued under and is
subject to the terms, provisions and conditions of the Transaction Documents, to
which Transaction Documents the Collateral Investor Certificateholder, by virtue
of its acceptance hereof, assents and is bound.
Although a summary of certain provisions of the Transaction
Documents is set forth below, this Collateral Investor Certificate does not
purport to summarize the Transaction Documents and is qualified in its entirety
by the terms and provisions of the Transaction
SERIES 1997-1 SUPPLEMENT
56
A-2-3
Documents and reference is made to the Transaction Documents for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of the Trustee,
the Servicer and the other parties bound by the Transaction Documents. A copy of
the Transaction Documents may be requested by writing to the Trustee, at Four
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency
Group/Structured Finance, at the expense of the Transferor.
The Series 1997-1 Certificates are issued in three Classes,
the Class A Certificates, the Collateral Investor Certificates (of which this
Collateral Investor Certificate is one), which are subordinated to the Class A
Certificates as described in the Transaction Documents, and the Subordinated
Transferor Certificate, which is subordinated to the Class A Certificates and
the Collateral Investor Certificates as described in the Transaction Documents.
In addition to the Series 1997-1 Certificates, the Transferor will issue an
Exchangeable Transferor Certificate pursuant to the Transaction Documents, which
will represent a fractional undivided interest in the Trust.
The Collateral Investor Certificates collectively represent a
fractional undivided interest in the Trust and the right to receive Collections
and other amounts, to the extent necessary to make the required payments with
respect to the Collateral Investor Certificates, at the times and in the amounts
specified in the Transaction Documents from time to time.
The Collateral Invested Amount with respect to any date will
be determined as set forth in the Series 1997-1 Supplement. The Collateral
Invested Amount and the amount of any distributions of principal to the
Collateral Investor Certificateholders shall be recorded on the Certificate
Register.
Interest on the unpaid Collateral Invested Amount outstanding
from time to time shall accrue at a rate per annum equal to the Collateral
Investor Certificate Rate in effect from time to time applicable to this
Collateral Investor Certificate and shall become due on the dates specified in
the Transaction Documents for distributions of amounts on account of such
interest until the Collateral Invested Amount shall have been reduced to zero.
Interest with respect to the Collateral Investor Certificates shall be
distributed to the Collateral Investor Certificateholders on each Distribution
Date. Payment of any installment of interest on Collateral Investor Certificates
will be made or caused to be made by the Trustee to the person in whose name
such Collateral Investor Certificate is registered at the close of business on
the Record Date. Payment of such interest will be made by wire transfer to a
designated account maintained by the Collateral Investor Certificateholder;
PROVIDED that such Collateral Investor Certificateholder has provided the
Trustee with the wire transfer designation, in writing, received by the Trustee
on or prior to the relevant Record Date. In the absence of such timely
SERIES 1997-1 SUPPLEMENT
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A-2-4
wire transfer instructions, payment will be made by check to the address of
record of the Collateral Investor Certificateholder.
Payment of principal in reduction of Collateral Investor
Certificates will be made by wire transfer to a designated account maintained by
the Collateral Investor Certificateholder. The final distribution on a
Collateral Investor Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of a
Collateral Investor Certificate at the Corporate Trust Office of the Trustee.
The Collateral Investor Certificates do not represent an
obligation of, or an interest in, the Transferor, the Servicer, the Company or
any Affiliate of any of them. This Collateral Investor Certificate is limited in
right of payment to certain Collections of the Receivables (and certain other
amounts), all as more specifically set forth hereinabove and in the Transaction
Documents.
The Collateral Investor Certificates are only issuable in
registered form without coupons in denominations of $5,000,000 and integral
multiples of $1,000 in excess thereof. Collateral Investor Certificates are
transferable upon surrender of the Collateral Investor Certificate, and any
other required documents, to an office of the Trustee, where newly executed and
authenticated Collateral Investor Certificates in the name of the designated
transferee will be delivered.
As provided in the Transaction Documents and subject to
certain limitations therein set forth, this Collateral Investor Certificate is
exchangeable for new Collateral Investor Certificates of the same Series
evidencing a like aggregate fractional undivided interest in the Trust, as
requested by the Collateral Investor Certificateholder surrendering this
Collateral Investor Certificate. No service charge will be imposed for any such
transfer or exchange, but the Transfer Agent and Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
SERIES 1997-1 SUPPLEMENT
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A-2-5
This Collateral Investor Certificate shall be construed in
accordance with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Transferor has caused this Collateral
Investor Certificate to be duly executed.
THE EL-BEE RECEIVABLES
CORPORATION
By:
---------------------------------
Name:
Title:
SERIES 1997-1 SUPPLEMENT
59
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Collateral Investor Certificates described
in the within-mentioned Pooling and Servicing Agreement.
Dated: __________ __, ____
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: OR
----------------------- -------------------------------------------
Authorized Signer as Authenticating Agent for the Trustee
By:
-------------------------------------
Authorized Signer
SERIES 1997-1 SUPPLEMENT
60
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned Certificateholder hereby
sell(s), assign(s) and transfer(s) unto ___________________________, whose
taxpayer identification number is _________________, and whose address,
including postal zip code, is ___________________________, the within Security
capitalized terms used herein and not otherwise defined herein are used herein
as defined therein) and all rights thereunder, hereby irrevocably constituting
and appointing _______________ attorney-in-fact to transfer said Security on the
books of the Trustee with full power of substitution in the premises.
In connection with the transfer of this security, the
undersigned holder certifies that:
[CHECK ONE]
|_| (A) This security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) in compliance with the exemption from
registration under the Securities Act provided by Rule 144A.
|_| (B) This Security is being transferred to a sophisticated
institutional investor which is an "accredited investor"
(within the meaning of Rule 501(a) (1) (2), (3) or (7) under
the Securities Act) in a transaction not involving any general
solicitation or advertising.
|_| (C) This Security is being transferred in compliance with another
exemption from registration under the Securities Act.
Dated:__________________ Name: _________________________
By: ____________________
Title: ____________________
NOTICE: The signature of the holder of this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without any
change whatsoever.
* If Box C is checked, the Trustee shall receive from the proposed
transferee, prior to the Trustee being required to effect the transfer
of this Security, a written opinion of
SERIES 1997-1 SUPPLEMENT
61
counsel stating that such transfer is exempt from the registration
requirements of the Securities Act and the basis therefor.
SIGNATURE GUARANTEED
------------------------------------------
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE TRUSTEE SHALL NOT BE OBLIGATED TO
REGISTER THIS SECURITY IN THE NAME OF ANY PERSON OTHER THAN THE HOLDER HEREOF
UNLESS AND UNTIL THE CONDITIONS TO ANY SUCH TRANSFER OF REGISTRATION SET FORTH
HEREIN, ON THE FACE HEREOF AND IN THE TRANSACTION DOCUMENTS, SHALL HAVE BEEN
SATISFIED.
SERIES 1997-1 SUPPLEMENT
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EXHIBIT A-3
FORM OF SUBORDINATED TRANSFEROR CERTIFICATE
----------- --, ----
REGISTERED Variable Principal Amount*
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
Certificate No. __
SERIES 1997-1
SUBORDINATED TRANSFEROR FLOATING RATE CERTIFICATE
THIS CERTIFICATE REPRESENTS AN
UNDIVIDED INTEREST IN CERTAIN ASSETS OF THE
XXXXX-XXXXXXX MASTER TRUST
the corpus of which consists primarily of certain receivables generated from
time to time by The Xxxxx-Xxxxxxx Stores Corp. (the "COMPANY") which are then
purchased by The El-Bee Chargit Corp. ("CHARGIT") (together, the "ORIGINATORS")
and then purchased by The El-Bee Receivables Corporation (the "TRANSFEROR"),
from the Originators, which in turn transfers and assigns such receivables to
The Xxxxx-Xxxxxxx Master Trust pursuant to the Pooling and Servicing Agreement,
dated as of December 30, 1997, among the Transferor, Chargit, as Servicer, and
Bankers Trust Company, as Trustee (as amended, supplemented or otherwise
modified from time to time, the "POOLING AND SERVICING AGREEMENT"; capitalized
terms used herein and not otherwise defined herein are used herein as therein
defined). This Certificate
---------------------------------------
* Denominations of $5,000,000 and multiples of $1,000 in excess thereof.
SERIES 1997-1 SUPPLEMENT
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A-3-2
(the "SUBORDINATED TRANSFEROR CERTIFICATE") does not represent a recourse
obligation, and is not guaranteed by, the Transferor, the Company, Chargit or
any Affiliate of any of them.
This certifies that ____________________ (the "SUBORDINATED
TRANSFEROR CERTIFICATEHOLDER") is the registered owner of a fractional undivided
interest in the assets of The Xxxxx-Xxxxxxx Master Trust (the "TRUST") created
pursuant to the Pooling and Servicing Agreement. Unless the certificate of
authentication hereon has been executed by or on behalf of the Trustee by manual
or facsimile signature, this Subordinated Transferor Certificate shall not be
entitled to any benefit under the Transaction Documents or be valid for any
purpose.
This Subordinated Transferor Certificate is not transferable
or assignable.
The corpus of the Trust consists of (i) a portfolio of
Receivables arising in connection with Accounts identified under the Pooling and
Servicing Agreement from time to time, (ii) funds collected or to be collected
from Obligors in respect of the Receivables, (iii) all funds which are from time
to time on deposit in the Concentration Account, the Collection Accounts and any
other account or accounts held for the benefit of the Certificateholders and
(iv) all other assets and interests constituting the Trust Assets.
This Subordinated Transferor Certificate is issued under and
is subject to the terms, provisions and conditions of the Transaction Documents,
to which Transaction Documents the Subordinated Transferor Certificateholder, by
virtue of the acceptance hereof, assents and is bound.
Although a summary of certain provisions of the Transaction
Documents is set forth below, this Subordinated Transferor Certificate does not
purport to summarize the Transaction Documents and is qualified in its entirety
by the terms and provisions of the Transaction Documents and reference is made
to the Transaction Documents for information with respect to the interests,
rights, benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee, the Servicer and the other
parties bound by the Transaction Documents. A copy of the Transaction Documents
may be requested by writing to the Trustee, at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Trust and Agency Group/Structured Finance, at
the expense of the Transferor.
The Series 1997-1 Certificates are issued in three Classes,
the Class A Certificates, the Collateral Investor Certificates, which are
subordinated to the Class A Certificates as described in the Transaction
Documents, and the Subordinated Transferor Certificate, which is subordinated to
the Class A Certificates and the Collateral Investor Certificates as described
in the Transaction Documents. In addition to the Series 1997-1
SERIES 1997-1 SUPPLEMENT
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A-3-3
Certificates, the Transferor will issue an Exchangeable Transferor Certificate
pursuant to the Transaction Documents, which will represent a fractional
undivided interest in the Trust.
The Subordinated Transferor Certificate collectively represent
a fractional undivided interest in the Trust and the right to receive
Collections and other amounts, to the extent necessary to make the required
payments with respect to the Subordinated Transferor Certificate, at the times
and in the amounts specified in the Transaction Documents from time to time.
The Subordinated Transferor Invested Amount with respect to
any date will be determined as set forth in the Series 1997-1 Supplement. The
Subordinated Transferor Invested Amount and the amount of any distributions of
principal to the Subordinated Transferor Certificateholder shall be recorded on
the Certificate Register.
Interest on the unpaid Subordinated Transferor Invested Amount
outstanding from time to time shall accrue at a rate per annum equal to the
Subordinated Transferor Certificate Rate in effect from time to time applicable
to this Subordinated Transferor Certificate and shall become due on the dates
specified in the Transaction Documents for distributions of amounts on account
of such interest until the Subordinated Transferor Invested Amount shall have
been reduced to zero. Interest with respect to the Subordinated Transferor
Certificate shall be distributed to the Subordinated Transferor
Certificateholder in accordance with the Transaction Documents. Payment of any
installment of interest on Subordinated Transferor Certificate will be made or
caused to be made by the Trustee to the Subordinated Transferor
Certificateholder. Payment of such interest will be made by wire transfer to a
designated account maintained by the Subordinated Transferor Certificateholder;
PROVIDED that the Subordinated Transferor Certificateholder has provided the
Trustee with the wire transfer designation, in writing, received by the Trustee
on or prior to the relevant Record Date. In the absence of such timely wire
transfer instructions, payment will be made by check to the address of record of
the Subordinated Transferor Certificateholder.
Payment of principal in reduction of Subordinated Transferor
Certificate will be made by wire transfer to a designated account maintained by
the Subordinated Transferor Certificateholder. The final distribution on a
Subordinated Transferor Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
a Subordinated Transferor Certificate at the Corporate Trust Office of the
Trustee.
The Subordinated Transferor Certificate does not represent an
obligation of, or an interest in, the Transferor, the Servicer, the Company or
any Affiliate of any of them. This Subordinated Transferor Certificate is
limited in right of payment to certain Collections of the
SERIES 1997-1 SUPPLEMENT
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Receivables (and certain other amounts), all as more specifically set forth
hereinabove and in the Transaction Documents.
As provided in the Transaction Documents and subject to
certain limitations therein set forth, this Subordinated Transferor Certificate
is exchangeable for a new Subordinated Transferor Certificate of the same Series
evidencing a like aggregate fractional undivided interest in the Trust, as
requested by the Subordinated Transferor Certificateholder surrendering this
Subordinated Transferor Certificate. No service charge will be imposed for any
such transfer or exchange, but the Transfer Agent and Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
This Subordinated Transferor Certificate shall be construed in
accordance with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Transferor has caused this
Subordinated Transferor Certificate to be duly executed.
THE EL-BEE RECEIVABLES
CORPORATION
By:
-----------------------------
Name:
Title:
SERIES 1997-1 SUPPLEMENT
66
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Subordinated Transferor Certificate described in
the within-mentioned Pooling and Servicing Agreement.
Dated: __________ __, ____
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: OR
-------------------------------- -------------------------------------
Authorized Signer as Authenticating Agent for the
Trustee
By:
----------------------------------
Authorized Signer
SERIES 1997-1 SUPPLEMENT
67
EXHIBIT B
FORM OF SWAP AGREEMENT
SERIES 1997-1 SUPPLEMENT
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EXHIBIT C
FORM OF CAP AGREEMENT
SERIES 1997-1 SUPPLEMENT
