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Exhibit 10(a)(iii)
EXECUTION COPY
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SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
Dated December 30, 1997
Among
THE EL-BEE RECEIVABLES CORPORATION
as Seller,
CORPORATE RECEIVABLES CORPORATION,
as Purchaser,
THE LIQUIDITY PROVIDERS NAMED HEREIN,
as Liquidity Providers,
CITICORP NORTH AMERICA, INC.,
as Program Agent for
Corporate Receivables Corporation
and the Liquidity Providers
and
BANKERS TRUST COMPANY,
as Trustee
Series 1997-1 Certificate Purchase Agreement
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................................................. 1
Section 1.02. Other Definitional Provisions........................................................... 5
ARTICLE II
THE PURCHASE; INCREASES
Section 2.01. The Purchase............................................................................ 6
Section 2.02. Increases............................................................................... 6
Section 2.03. Class A Certificates.................................................................... 6
Section 2.04. Reductions to the Series 1997-1 Class A Purchase Limit.................................. 7
Section 2.05. Procedures for Making the Purchase and Increases........................................ 7
Section 2.06. Assignments by CRC to Liquidity Providers............................................... 8
Section 2.07. Term.................................................................................... 9
ARTICLE III
FEES AND YIELD PROTECTION
Section 3.01. Fees.................................................................................... 10
Section 3.02. Increased Costs......................................................................... 10
Section 3.03. Taxes................................................................................... 11
Section 3.04. Cost and Expenses....................................................................... 14
Section 3.05. Sharing of Payments, Etc................................................................ 15
ARTICLE IV
CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES
Section 4.01. Conditions Precedent to Initial Purchase................................................ 16
Section 4.02. Conditions Precedent to the Purchase and All Increases.................................. 19
Section 4.03. Additional Conditions Precedent......................................................... 21
Series 1997-1 Certificate Purchase Agreement
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ARTICLE V
THE PROGRAM AGENT
Section 5.01. Authorization and Action of the Program Agent........................................... 22
Section 5.02. The Program Agent's Reliance, Etc....................................................... 22
Section 5.03. The Program Agent and Affiliates........................................................ 23
Section 5.04. Amendments, Waivers and Consents........................................................ 23
Section 5.05. Liquidity Provider Credit Decision...................................................... 24
ARTICLE VI
ASSIGNMENTS
Section 6.01. Assignment.............................................................................. 24
Section 6.02. Rights of Assignee...................................................................... 25
Section 6.03. Notice of Assignment.................................................................... 25
Section 6.04. Register................................................................................ 25
Section 6.05. Restrictions on Assignments and Participations.......................................... 26
ARTICLE VII
PARTICIPATIONS
Section 7.01. Participations.......................................................................... 26
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc......................................................................... 27
Section 8.02. Notices, Etc............................................................................ 27
Section 8.03. No Waiver; Remedies; Set-Off............................................................ 28
Section 8.04. Binding Effect; Survival................................................................ 28
Section 8.05. No Proceedings.......................................................................... 28
Section 8.06. Captions and Cross References........................................................... 29
Section 8.07. Integration............................................................................. 29
Section 8.08. Replacement of Liquidity Providers...................................................... 29
Section 8.09. Confidentiality......................................................................... 29
Section 8.10. Reimbursement of Program Agent.......................................................... 30
Section 8.11. Limitation of Liability................................................................. 30
Section 8.12. Governing Law........................................................................... 30
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Section 8.13. Submission to Jurisdiction.............................................................. 31
Section 8.14. Consent to Service of Process........................................................... 31
Section 8.15. Execution in Counterparts............................................................... 31
Section 8.16. Waiver of Jury Trial.................................................................... 32
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Notice of Purchase
Exhibit C Form of Notice of Increase
Series 1997-1 Certificate Purchase Agreement
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SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT dated December
30, 1997 among THE EL-BEE RECEIVABLES CORPORATION, a Delaware corporation, as
Seller (the "SELLER"), CORPORATE RECEIVABLES CORPORATION, a California
corporation, as Purchaser (as defined below), the financial institutions listed
from time to time on the signature pages hereto, as Liquidity Providers (as
defined below), CITICORP NORTH AMERICA, INC., a Delaware corporation, as Program
Agent (as defined below), and BANKERS TRUST COMPANY, a New York banking
corporation, not in its individual capacity but solely as Trustee.
PRELIMINARY STATEMENTS:
1. The Xxxxx-Xxxxxxx Master Trust formed under the Pooling and
Servicing Agreement (as such term and other terms used in these Preliminary
Statements are hereinafter defined) may issue the Class A Certificates at the
direction of the Seller.
2. Subject to the terms and conditions of this Agreement and
of the Series 1997-1 Supplement, the Seller may sell the Class A Certificates to
CRC or the Liquidity Providers.
3. Subject to the terms and conditions of this Agreement, CRC
may, and the Liquidity Providers shall, fund from time to time, Increases in the
Class A Invested Amount.
4. The Class A Certificates will be held by the Program Agent
for CRC and the Liquidity Providers.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. All capitalized terms used herein
and not otherwise defined herein shall have the meanings specified in the
Pooling and Servicing Agreement or in the Series 1997-1 Supplement (as defined
below). In addition, the term "Agreement" shall mean this Series 1997-1
Certificate Purchase Agreement, as the same may from time to time be amended,
supplemented or otherwise modified. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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"AFFECTED PERSON" means CRC, any partner therein or
shareholder thereof, or any Liquidity Provider (and, for purposes of Section
3.03, the Trust and the Trustee).
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
in substantially the form of Exhibit A hereto pursuant to which a Liquidity
Provider assigns all or a portion of its rights and obligations under this
Agreement in accordance with the terms of Section 6.01(b).
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, 11
U.S.C. xx.xx. 101 et. seq., as amended from time to time.
"BANKRUPTCY COURT" means the United States Bankruptcy Court
for the Southern District of Ohio, or such other court as may hereafter be
granted primary jurisdiction over the Reorganization Case.
"CERTIFICATE PRICE" has the meaning specified in Section 2.06.
"CHANGE IN TAX LAW" means any amendment to, or change in, the
laws (or any regulations thereunder) of the United States of America or any
political subdivision or taxing authority thereof or therein affecting taxation
or any amendment to, or change in, an interpretation or application of, such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination).
"COMMITMENT" means, as of any date and with respect to any
Liquidity Provider, the amount set forth opposite such Liquidity Provider's name
on the signature pages hereto under the caption "Liquidity Provider Commitment"
or, if such Liquidity Provider has entered into one or more assignments and
acceptances, as set forth for such Liquidity Provider in the Register maintained
by the Program Agent pursuant to Section 6.04 as such Liquidity Provider's
"Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.04.
"CONFIDENTIAL INFORMATION" means any written information
delivered or made available by or on behalf of the Parent (or its Affiliates or
Subsidiaries), the Servicer or the Transferor to any Person in connection with
or pursuant to this Agreement or the transactions contemplated hereby, other
than information (i) which was publicly known, or otherwise known to such Person
(other than from any party to a Transaction Document or any other Person not
entitled to disclose the same free of any confidentiality requirements) at the
time of disclosure or (ii) which subsequently becomes publicly known through no
act or omission by such Person.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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"CRC" means Corporate Receivables Corporation, a California
corporation, and each assignee that shall become a party hereto pursuant to
Section 6.01, but shall not include the Liquidity Providers as assignees under
Section 2.06.
"CURRENT PLAN" means the Parent's Second Amended Plan of
Reorganization dated November 7, 1997 and all exhibits thereto.
"ELIGIBLE ASSIGNEE" means a depository institution organized
under the laws of the United States of America or any state thereof, or the
District of Columbia (or any domestic branch of a foreign bank authorized under
any such laws), (a) whose senior long-term unsecured debt obligations are rated
at least (i) A- or better by Standard & Poor's, and (ii) A3 or better by
Xxxxx'x, (b) which is subject to regulation regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b), and (c) which has a combined
capital and surplus of at least $500,000,000.
"EXTENSION TERM" has the meaning specified in Section 2.07.
"INCREASE" has the meaning specified in Section 2.02.
"INITIAL TERM" means, with respect to each Liquidity Provider
Commitment, the period which commences on the date such Liquidity Provider
enters into this Agreement and ends on the date which is 364 days after the date
of this Agreement.
"LIQUIDITY PROVIDER COMMITMENT PERCENTAGE" means, on any day
and as to any Liquidity Provider, a fraction, the numerator of which is such
Liquidity Provider's Commitment and the denominator of which is the Series
1997-1 Class A Purchase Limit on such day.
"LIQUIDITY PROVIDERS" means the banks and financial
institutions party hereto from time to time as "Liquidity Providers" hereunder,
as their names appear on the signature pages hereto under the heading "Liquidity
Providers", and their respective successors and assigns, including each assignee
that shall become a party hereto pursuant to Section 6.01.
"MAJORITY OF SERIES 1997-1 CLASS A CERTIFICATE INTERESTS"
means Certificateholders of Series 1997-1 Class A Certificate Interests
evidencing 51% or more of the aggregate Series Class A 1997-1 Certificate
Interests; PROVIDED that, solely for purposes of this computation, (i) Liquidity
Providers shall be deemed to hold Series 1997-1 Class A Certificate Interests
equal to their respective Liquidity Provider Commitment Percentages of such
aggregate Series 1997-1 Class A Certificate Interests, whether or not they have
made the Purchase or funded any Increases, and (ii) CRC's Series 1997-1 Class A
Certificate Interest will be reduced by the amount set forth in clause (i) and
also by the amount of any Series
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1997-1 Class A Certificate Interests held by
Persons other than CRC and any Liquidity Provider.
"OBLIGATIONS" means all obligations of any Originator, the
Seller, the Transferor, the Servicer or the Parent to any one or more of the
Trustee, the Trust, the Purchaser, the Liquidity Providers, each other
Indemnified Party and its respective successors, permitted transferees and
assigns, arising under or in connection with the Transaction Documents,
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due.
"PARENT" means The Xxxxx-Xxxxxxx Stores Corp., an Ohio
corporation.
"PLAN OF REORGANIZATION" means the Parent's plan of
reorganization (including all exhibits thereto) ultimately confirmed by the
Bankruptcy Court in the Parent's Reorganization Case.
"POOLING AND SERVICING AGREEMENT" means 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.
"PROGRAM AGENT" means Citicorp North America, Inc., together
with its successors and assigns as agent for the Purchaser and the Liquidity
Providers.
"PROGRAM AGENT'S ACCOUNT" shall have the meaning specified in
Section 2.05(e).
"PURCHASE" means the purchase under Section 2.01 of the Class
A Certificates, whether by CRC or the Liquidity Providers.
"PURCHASE DATE" means the date on which either CRC or the
Liquidity Providers make the Purchase pursuant to Section 2.01(a) or (b),
respectively.
"PURCHASE PRICE" means the price specified in the notice from
the Seller (substantially in the form of Exhibit B hereto) delivered on or
before the Purchase Date pursuant to Section 2.05(a).
"PURCHASER" means either CRC or the Liquidity Providers, as
provided in Section 2.01.
"REGISTER" has the meaning specified in Section 6.04.
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"REORGANIZATION CASE" means the Parent's case pursuant to
chapter 11 of the Bankruptcy Code administered in the Bankruptcy Court under
Case No. 95-33643.
"SELLER" shall have the meaning specified in the first
paragraph hereof.
"SERIES 1997-1 CLASS A CERTIFICATE INTEREST" means each
interest in the Class A Certificates acquired by CRC or a Liquidity Provider.
"SERIES 1997-1 CLASS A PURCHASE LIMIT" means, as of any date,
$117,000,000 (or, if less, the aggregate amount of Commitments of all Liquidity
Providers who as of such date are party to this Agreement), as such amount shall
have been reduced pursuant to Section 2.04 hereof.
"SERIES 1997-1 SUPPLEMENT" means the Series 1997-1 Supplement
dated as of the date hereof among the Seller, the Servicer and the Trustee.
"TERM" means, with respect to each Commitment, the Initial
Term and each Extension Term as provided in Section 2.07.
Section 1.02. OTHER DEFINITIONAL PROVISIONS. (a) All
accounting terms not defined in this Agreement, and accounting terms partly
defined in this Agreement to the extent not completely defined, shall have the
respective meanings given to them under GAAP or regulatory accounting
principles, as applicable and in effect from time to time. To the extent that
the definitions of accounting terms herein are inconsistent with the meanings of
such terms under GAAP or regulatory accounting principles, the definitions
contained herein shall control.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
Schedule and Exhibit references contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; the term "including" means "including without limitation".
(c) Unless otherwise stated in this Agreement, 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".
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms, and to the masculine
as well as the feminine and neuter genders, of such terms.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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ARTICLE II
THE PURCHASE; INCREASES
Section 2.01. THE PURCHASE. (a) Subject to the satisfaction of
the conditions precedent set forth in Article IV, CRC may, in its sole
discretion, make the Purchase in accordance with the procedures set forth in
Section 2.05 hereof.
(b) If CRC shall elect not to make the Purchase on the
Purchase Date, the Liquidity Providers shall, subject to the satisfaction of the
conditions precedent set forth in Article IV, make the Purchase in accordance
with the procedures set forth in Section 2.05 hereof. Each Liquidity Provider's
share of the Purchase Price for the Purchase shall be an amount equal to its
Liquidity Provider Commitment Percentage of the Purchase Price.
(c) Under no circumstances shall CRC or the Liquidity
Providers make the Purchase on any day if, as a result thereof, (i) the Class A
Invested Amount would exceed the Series 1997-1 Class A Purchase Limit or (ii)
any Liquidity Provider's ratable interest in the Class A Invested Amount would
exceed such Liquidity Provider's Commitment.
Section 2.02. INCREASES. (a) CRC may, in its sole discretion,
from time to time during the period from the date of this Agreement to the last
day of the Revolving Period, upon the request of the Seller (with a copy of such
request delivered to the Trustee) and subject to the satisfaction of the
conditions precedent set forth in Article IV, fund increases of the Class A
Invested Amount (each such increase, an "INCREASE"), and, upon so funding an
Increase, shall acquire Series 1997-1 Class A Certificate Interests in an amount
corresponding to the amount of such Increase.
(b) If CRC elects not to fund a requested Increase, each
Liquidity Provider shall, during the Term applicable to such Liquidity Provider,
upon the request of the Seller and subject to the satisfaction of the conditions
precedent set forth in Article IV, (i) fund its Liquidity Provider Commitment
Percentage of the amount of such requested Increase and (ii) acquire CRC's
Series 1997-1 Class A Certificate Interest pursuant to Section 2.06. If any
Liquidity Provider receives a request from the Seller in accordance with the
preceding sentence during the Term applicable to such Liquidity Provider, such
Liquidity Provider shall thereafter during the Revolving Period upon each
subsequent request of the Seller and subject to the satisfaction of the
conditions precedent set forth in Article IV fund its Liquidity Provider
Commitment Percentage of the amount of each requested Increase.
(c) Under no circumstances shall CRC or the Liquidity
Providers fund any Increase to the extent that, after giving effect to such
Increase on any day, (i) the Class A
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Invested Amount would exceed the Series 1997-1 Class A Purchase Limit or (ii)
any Liquidity Provider's ratable interest in the Class A Invested Amount would
exceed such Liquidity Provider's Commitment.
Section 2.03. CLASS A CERTIFICATES. On the Purchase Date, on
each date on which an Increase in the Class A Invested Amount is funded
hereunder and on each date on which each of the Class A Invested Amount and the
Series 1997-1 Class A Purchase Limit is reduced, a duly authorized officer or
employee of the Program Agent shall make appropriate notations in its books and
records of the Purchase Price or the amount of such Increase or the amount of
such reduction, as applicable. Each of the Servicer, the Seller and the Trustee
hereby authorizes each duly authorized officer and employee of the Program Agent
to make such notations on the books and records as aforesaid and every such
notation made in accordance with the foregoing authority shall be PRIMA FACIE
evidence of the accuracy of the information so recorded and shall be binding on
the Servicer, the Seller and the Trustee absent manifest error.
Section 2.04. REDUCTIONS TO THE SERIES 1997-1 CLASS A PURCHASE
LIMIT. The Seller may, from time to time, upon at least 10 Business Days' prior
written notice to the Program Agent and the Trustee, elect to reduce the Series
1997-1 Class A Purchase Limit by an amount up to the difference between the
Series 1997-1 Class A Purchase Limit at such time and the Class A Invested
Amount at such time. Any such reduction shall be permanent and shall reduce the
Commitments of the Liquidity Providers hereunder ratably in accordance with the
Liquidity Provider Commitment Percentages immediately prior to such reduction.
Section 2.05. PROCEDURES FOR MAKING THE PURCHASE AND
INCREASES. (a) NOTICE OF THE PURCHASE AND INCREASES. The Purchase and each
Increase shall occur on a Business Day and shall be made or funded on notice
from the Seller (substantially in the form of Exhibit B hereto, in the case of
the Purchase, or Exhibit C hereto, in the case of an Increase) to the Program
Agent, to be received by the Program Agent not later than 1:00 p.m. (New York
City time) on, in the case of the Purchase, unless such Purchase Date is
December , 1997, the third Business Day (or such shorter time as may be agreed
to by the Seller and the Program Agent), immediately preceding the Purchase Date
or, in the case of an Increase, on the Business Day immediately preceding the
date of such Increase (with a copy provided to the Trustee); PROVIDED that, if
the Class A Certificate Rate for the initial Interest Period for the resulting
Increase is the Assignee Rate to be calculated at a rate based on the Adjusted
Eurodollar Rate, then such notice must be received not later than 1:00 p.m. (New
York City time) on the third Business Day next preceding the date of such
Increase. Each notice shall specify the Purchase Price or the amount of the
Increase (in each case, not to be less than $1,000,000) and the Purchase Date or
the date of the Increase. The Program Agent shall promptly notify the Seller and
each Liquidity Provider if CRC elects in its discretion not to make the Purchase
or fund an Increase.
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(b) DELIVERY OF THE CLASS A CERTIFICATES. On the Purchase
Date, the Seller will deliver to the Program Agent, on behalf of the Purchaser,
the Class A Certificates dated the Purchase Date, duly executed by the
Transferor, registered in the name of the Purchaser and duly authenticated in
accordance with the provisions of the Pooling and Servicing Agreement, against
delivery by the Program Agent, on behalf of the Purchaser, to the Seller, of the
Purchase Price.
(c) FUNDING OF THE PURCHASE AND INCREASES. On the Purchase
Date and any date on which an Increase is funded, CRC or the Liquidity
Providers, as applicable, shall, upon satisfaction of the applicable conditions
set forth in Article IV, deposit in the Program Agent's Account, (i) in the case
of CRC, the Purchase Price or amount of the Increase or (ii) in the case of each
Liquidity Provider, its Liquidity Provider Commitment Percentage of the Purchase
Price or amount of the Increase, in each case in same day funds, and after
receipt by the Program Agent of such funds, the Program Agent will deposit the
same into the Seller's Account.
(d) The Seller shall establish a special account designated
under the account name "The El-Bee Receivables Corporation, Series 1997-1 Class
A" maintained with Citibank, N.A. in New York, New York, which account (the
"SELLER'S ACCOUNT") shall be under the sole dominion and control of the Seller.
(e) The Program Agent shall establish and maintain in its own
name, on behalf and for the benefit of CRC (for so long as CRC or any Liquidity
Provider is a holder of Class A Certificates), with Citibank, N.A. in New York,
New York a segregated account accessible only by the Program Agent (the "PROGRAM
AGENT'S ACCOUNT"), which shall be identified as "Program Agent's Account for the
Xxxxx-Xxxxxxx Master Trust, Series 1997-1 Class A" and shall bear a designation
clearly indicating that the funds deposited therein are held for the benefit of
CRC, as holder of Class A Certificates.
Section 2.06. ASSIGNMENTS BY CRC TO LIQUIDITY PROVIDERS. (a)
In addition to the obligations of the Liquidity Providers pursuant to Section
2.02(b), on any date during the Term (including any date on which CRC has
elected in its discretion not to fund an Increase hereunder pursuant to Section
2.02), CRC may, in its sole discretion, upon written notice given to the Program
Agent and the Seller, assign to the Liquidity Providers (in accordance with
their respective Liquidity Provider Commitment Percentages), and the Liquidity
Providers shall purchase, all of the right, title and interest in all Series
1997-1 Class A Certificate Interests which are then owned by CRC at a purchase
price (the "CERTIFICATE PRICE") equal to the aggregate Class A Invested Amount
plus all accrued and unpaid interest thereon and all other amounts payable to
CRC under the Transaction Documents. Each such notice of purchase shall be given
no later than 12:00 noon (New York City time) on the Business Day of
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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such purchase, shall be sent by telecopier, telex or cable to all Liquidity
Providers concurrently, and shall specify the date of such purchase. Prior to
3:00 p.m. (New York City time) on the date of such purchase, each Liquidity
Provider shall pay the Program Agent for the account of CRC in immediately
available funds in U.S. Dollars, by depositing to an account designated by the
Program Agent in New York City, an amount equal to the product of such
Certificate Price times the Liquidity Provider Commitment Percentage of such
Liquidity Provider. Such assignment of Series 1997-1 Class A Certificate
Interests shall be made by CRC upon receipt of consideration (in cash) from the
Liquidity Providers.
(b) Upon the assignment described in subsection (a) above, (i)
all Series 1997-1 Class A Certificate Interests previously owned by CRC and so
assigned shall become Series 1997-1 Class A Certificate Interests owned by the
Liquidity Providers, (ii) the Program Agent will present the Class A
Certificates to the Trustee for transfer to the Liquidity Providers and the
Trustee shall register new Class A Certificates in the name of the Liquidity
Providers and deliver the same to the Program Agent who shall make appropriate
notations in its books and records of such assignment and (iii) the Program
Agent shall, to the extent provided under the Series 1997-1 Supplement, pay to
CRC on the date of such assignment if such assignment occurs on a Distribution
Date, or on the next succeeding Distribution Date, out of Collections available
for such payments as provided in the Series 1997-1 Supplement, any Breakage
Costs.
(c) The assignment of the Series 1997-1 Class A Certificate
Interests and the Class A Certificates from CRC to the Liquidity Providers
pursuant to this Section 2.06 shall be without recourse or warranty, express or
implied, except that such Series 1997-1 Class A Certificate Interests and the
Class A Certificates are free and clear of Liens created by or arising as a
result of claims against the Program Agent or CRC. Nothing in this Section 2.06
shall be deemed to limit any rights of CRC under any other provisions of this
Agreement to assign its right, title to and interest in and to any portion of
the Series 1997-1 Class A Certificate Interests or the Class A Certificates
owned by it.
Section 2.07. TERM. The Initial Term of each Liquidity
Provider Commitment hereunder shall be for a period commencing on the date such
Liquidity Provider enters into this Agreement and, subject to any earlier
termination under Section 8.08, ending on the date that is 364 days after the
date of this Agreement. No earlier than 30 days, but no later than 20 days,
prior to the expiration of the Initial Term or any Extension Term, the Program
Agent may request an extension of such Term (such extended period being an
"EXTENSION TERM") and each Liquidity Provider may, in its sole and absolute
discretion, extend its Commitment by delivering to the Program Agent a written
notice of such Liquidity Provider's agreement to extend, which each Liquidity
Provider shall deliver to the Program Agent no later than 10 days after such
Liquidity Provider receives any such request for extension; PROVIDED, HOWEVER,
that any such extension shall be ineffective if an Early Amortization Event has
occurred and is
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continuing at the time of the proposed commencement of such Extension Term.
Failure of a Liquidity Provider to deliver a notice of such Liquidity Provider's
intent to grant an Extension Term shall be deemed to be an election by such
Liquidity Provider not to grant an Extension Term. Unless otherwise agreed by
the Program Agent, if less than all of the Liquidity Providers have elected to
grant an Extension Term and the Program Agent has been unable to replace after
reasonable efforts any Liquidity Provider which has declined to grant an
Extension Term, such request for an Extension Term shall be withdrawn and the
Program Agent will so notify the Liquidity Providers and the Seller prior to the
day on which the Term expires.
ARTICLE III
FEES AND YIELD PROTECTION
Section 3.01. FEES. The Seller shall pay to the Program Agent
such fees for its own account and for the account of CRC, and the Liquidity
Providers in such amounts and at such times as set forth in the Fee Letter.
Section 3.02. INCREASED COSTS. (a) If, due to either (i) the
introduction or any change in or in the interpretation of any law or regulation
(other than any change by way of imposition or increase of reserve requirements
included in determining the Adjusted Eurodollar Rate) or (ii) the compliance
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), in each case occurring after
the Purchase Date, there shall be any increase in the cost, on an after-tax
basis, to any Affected Person of any commitment to make the Purchase or to fund
Increases or otherwise to maintain the investment in the Class A Certificates or
Series 1997-1 Class A Certificate Interests in respect of which the Class A
Certificate Rate is the Assignee Rate determined by reference to the Adjusted
Eurodollar Rate (excluding for purposes of this Section 3.02 any such increased
costs resulting from (A) Taxes or Other Taxes (as to which Section 3.03 will
govern) and (B) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state (or any political subdivision thereof) under the laws of which such
Affected Person is organized or in which it is otherwise doing business) then
the Seller shall from time to time, upon demand by such Affected Person (with a
copy of such demand to the Program Agent), promptly pay to the Program Agent,
for the account of such Affected Person (as a third party beneficiary),
additional amounts sufficient to compensate such Affected Person for such
increased cost. Such demand shall be accompanied by a reasonably detailed
statement as to the amount of such compensation and include a summary of the
basis for such demand. A certificate as to such amounts submitted to the Seller
and the Program Agent by such Affected Person shall be conclusive and binding
for all purposes, absent manifest error.
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(b) If (i) the introduction of or change in or in the
interpretation of any law or regulation, (ii) compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), in each case
occurring after the Purchase Date, affects or would affect the amount of capital
required or expected to be maintained by any Affected Person, or any corporation
controlling any Affected Person, and that the amount of such capital is
increased by or based upon the existence of such Affected Person's commitment to
make the Purchase or fund Increases or otherwise to maintain its investment in
the Class A Certificates or Series 1997-1 Class A Certificate Interests, then,
upon demand to the Seller by such Affected Person (with a copy of such demand to
the Program Agent) the Seller shall promptly pay to the Program Agent for the
account of such Affected Person (as a third party beneficiary), from time to
time as specified by such Affected Person, additional amounts sufficient to
compensate such Affected Person, in light of the circumstances, to the extent
that such Affected Person reasonably determines such increase in capital to be
allocable to the existence of such Affected Person's commitment to make the
Purchase or fund Increases or otherwise maintain its investment in the Class A
Certificates or Series 1997-1 Class A Certificate Interests. Such demand shall
be accompanied by a reasonably detailed statement as to the amount of such
compensation and include a summary of the basis for such demand. A certificate
as to such amounts submitted to the Seller and the Program Agent by such
Affected Person shall be conclusive and binding for all purposes, absent
manifest error.
(c) Each Affected Person will promptly notify the Seller and
the Program Agent of any event of which it has knowledge which is reasonably
likely to entitle such Affected Person to compensation pursuant to this Section
3.02; PROVIDED, HOWEVER, that no failure to give or delay in giving such
notification shall adversely affect the rights of such Affected Person to such
compensation.
Section 3.03. TAXES. (a) Except as provided in subsection (g)
below, any and all payments and deposits hereunder or under any other
Transaction Document to or for the benefit of any Affected Person (including any
payments or deposits made by the Servicer) shall be made free and clear of, and
without deduction for, any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING, in the case of each Affected Person, taxes imposed on, or measured by
reference to, its overall net income or net profits (and franchise taxes imposed
in lieu thereof) by any of (i) the United States or any state thereof, (ii) the
jurisdiction under the laws of which such Affected Person is organized or in
which it is otherwise doing business or (iii) any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments and deposits hereunder being hereinafter
referred to as "TAXES"). In addition to, without duplication, the Seller's
indemnity obligations under Section 7.03 of the Pooling and Servicing Agreement,
if the Seller, the Parent, the Trust
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or the Trustee shall be required by law to deduct or pay any Taxes from or in
respect of any sum required to be paid or deposited hereunder or under any other
Transaction Document or any instrument delivered hereunder or thereunder, to or
for the benefit of any Affected Person, except as provided in subsection (g)
below, (i) the Seller shall increase the sum payable by it, the Parent, the
Trust or the Trustee, as the case may be, as may be necessary so that after
making all required deductions or payments (including deductions or payments
applicable to additional sums required to be paid or deposited under this
Section 3.03) the amount received by the relevant Affected Person, or otherwise
deposited hereunder or thereunder, shall be equal to the sum which would have
been so received or deposited had no such deductions been made, (ii) the Seller
shall make such deductions or payments, or cause such deductions or payments to
be made, and (iii) the Seller shall pay or cause to be paid the full amount
deducted or payable to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Seller shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment or deposit made under any Transaction Document or from
the execution, delivery or registration of, performing under, or otherwise with
respect to, any Transaction Document (hereinafter referred to as "OTHER TAXES").
(c) The Seller will indemnify each Affected Person for and
hold it harmless against the full amount of Taxes and Other Taxes as well as for
the full amount of any net increase in taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 3.03, imposed on or paid by
such Affected Person (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or
required to be paid with respect thereto. This indemnification shall be made
within 30 days from the date such Affected Person makes written demand therefor
to the Program Agent and the Seller. A certificate as to the amount of such
indemnification submitted to the Seller and the Program Agent by such Affected
Person setting forth the calculation thereof in reasonable detail shall be
conclusive and binding for all purposes, absent manifest error.
(d) Within 30 days after the date of any payment of Taxes, the
Seller or the Trustee (as the case may be) shall furnish to the Program Agent,
at its address referred to in Section 8.02, the original or a certified copy of
a receipt evidencing such payment. In the case of any payment hereunder by or on
behalf of the Seller through an account or branch outside the United States or
by or on behalf of the Seller by a payor that is not a United States person, if
the Seller determines that no Taxes are payable in respect thereof, the Seller
shall furnish, or shall cause such payor to furnish, to the Program Agent, at
such address, an Opinion of Counsel acceptable to the Program Agent stating that
such payment is exempt from Taxes. For purposes of these Sections 3.03(d) and
3.03(f), the terms "UNITED STATES" and "UNITED STATES PERSON" have the meanings
specified in Section 7701 of the Code.
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(e) Notwithstanding the foregoing and any other provisions of
this Section 3.03, obligations of the Trustee, if any, under this Section 3.03
shall be payable only out of the Trust Assets.
(f) Each Liquidity Provider that is organized under the laws
of a jurisdiction outside the United States shall, on or prior to the date of
its execution and delivery of this Agreement or on the date of the assignment
and acceptance pursuant to which it became a Liquidity Provider, as applicable,
and from time to time thereafter as requested in writing by the Seller or the
Program Agent, provide (but only so long thereafter as such Liquidity Provider
remains lawfully able to do so) each of the Seller and the Program Agent with
two original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Liquidity Provider is exempt from United States withholding tax or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement. If the form provided by a Liquidity Provider at the time such
Liquidity Provider first becomes a party to this Agreement indicates a United
States interest withholding tax in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Liquidity Provider
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate shall only be considered excluded from taxes
for periods governed by such form. If any form or document referred to in this
subsection (f) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service forms 1001 or 4224, that the Liquidity Provider
reasonably considers to be confidential, the Liquidity Provider shall give
notice thereof to the Seller and the Program Agent and shall not be obligated to
include in such form or document such confidential information.
(g) For any period with respect to which a Liquidity Provider
has failed to provide the Seller and the Program Agent with the appropriate form
described in subsection (f) above (OTHER THAN if such failure is due to a change
in law occurring after the date on which a form originally was required to be
provided by such Liquidity Provider or if such form otherwise is not required
under subsection (f) above), the Seller shall not be required to make any
additional payments under subsection (a) above nor shall such Liquidity Provider
be entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by the United States; PROVIDED, HOWEVER, that should a Liquidity
Provider become subject to Taxes because of its failure to deliver a form
required hereunder, the Seller shall take such steps as such Liquidity Provider
shall reasonably request to assist such Liquidity Provider to recover such
Taxes.
(h) Notwithstanding anything to the contrary herein, following
a final determination or Opinion of Counsel based on a Change in Tax Law that
the Trust will be
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treated as a partnership for federal income tax purposes, the Seller or the
Trustee shall be entitled to withhold any amounts required to be withheld with
respect to an Affected Person under Section 1446 of the Code ("SECTION 1446
AMOUNTS") and to pay or cause such amounts to be paid to the relevant taxation
authority as authorized in accordance with applicable law, and such amounts
shall be deemed to have been paid to the Affected Person for all purposes of
this Agreement, including Section 3.03(a). If a Section 1446 Amount is withheld
with respect to an Affected Person for a taxable period other than one with
respect to which such Affected Person as of the date of withholding has filed or
was required to file a U.S. federal income tax return, the Trustee shall (i)
promptly provide the Affected Person with appropriate written evidence
reflecting the amount of and the basis for such withholding and (ii) pay to such
Affected Person such additional interest as may accrue on such Section 1446
Amount from the date such amount was deemed paid to the Affected Person
hereunder through the due date of the first federal income tax return (treating
any required payment of estimated tax as a United States federal income tax
return for such purpose) on which such Affected Person is able to take into
account or otherwise request a credit or refund of such Section 1446 Amount, at
a rate equal to the interest rate that would otherwise be applicable to the
principal amount of the relevant Class A Certificates.
Section 3.04. COST AND EXPENSES. (a) In addition to the rights
of indemnification granted to the Indemnified Parties pursuant to Section 7.03
of the Pooling and Servicing Agreement, the Seller agrees to pay on demand (i)
all costs and expenses (including reasonable fees and expenses of counsel) of
the Trustee, the Program Agent, CRC and any general partner, limited partner or
shareholder of CRC in connection with the arrangement, preparation, execution,
delivery, closing, administration, modification, amendment, extension or waiver
of the Transaction Documents (including (A) all due diligence, collateral
review, syndication, transportation, computer, duplication, appraisal, audit,
insurance, consultant, search, filing and recording fees and expenses, (B) the
reasonable fees and expenses of counsel for the Program Agent with respect
thereto (including with respect to advising the Program Agent as to its rights
and responsibilities, or the perfection, protection or preservation of rights or
interests, under the Transaction Documents, with respect to negotiations with
the Parent, the Transferor, the Servicer or any Originator or with other
creditors of any such Person or any of its Subsidiaries arising out of any Early
Amortization Event or Servicer Default, or any event or circumstance that may
give rise to an Early Amortization Event or Servicer Default and with respect to
presenting claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally and
any proceeding ancillary thereto), and (C) all other costs and expenses in
connection therewith incurred by CRC or any general or limited partner or
shareholder of CRC, including the reasonable fees and out-of-pocket expenses of
counsel for CRC or any counsel for any general or limited partner or shareholder
of CRC with respect to (1) advising CRC or any general or limited partner or
shareholder of CRC as to its rights and remedies under the Transaction Documents
or (2) advising CRC or any general or limited partner or shareholder of CRC as
to
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treated as a partnership for federal income tax purposes, the Seller or the
Trustee shall be entitled to withhold any amounts required to be withheld with
respect to an Affected Person under Section 1446 of the Code ("SECTION 1446
AMOUNTS") and to pay or cause such amounts to be paid to the relevant taxation
authority as authorized in accordance with applicable law, and such amounts
shall be deemed to have been paid to the Affected Person for all purposes of
this Agreement, including Section 3.03(a). If a Section 1446 Amount is withheld
with respect to an Affected Person for a taxable period other than one with
respect to which such Affected Person as of the date of withholding has filed or
was required to file a U.S. federal income tax return, the Trustee shall (i)
promptly provide the Affected Person with appropriate written evidence
reflecting the amount of and the basis for such withholding and (ii) pay to such
Affected Person such additional interest as may accrue on such Section 1446
Amount from the date such amount was deemed paid to the Affected Person
hereunder through the due date of the first federal income tax return (treating
any required payment of estimated tax as a United States federal income tax
return for such purpose) on which such Affected Person is able to take into
account or otherwise request a credit or refund of such
(b) If the Parent, the Seller, the Servicer or any Originator
fails to pay when due any costs, expenses or other amounts payable by it under
any Transaction Document, including fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Person by the Program
Agent or any Liquidity Provider, in its sole discretion.
Section 3.05. SHARING OF PAYMENTS, ETC. If any Liquidity
Provider shall obtain at any time any payment or other recovery (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) (a) on account of any Obligation due and payable to such Liquidity
Provider hereunder (other than pursuant to Section 3.02, 3.03 or 3.04 of this
Agreement) which is in excess of its PRO RATA share (according to the proportion
of (i) the amount of such Obligations due and payable to such Liquidity Provider
at such time to (ii) the aggregate amount of such Obligations due and payable to
all Liquidity Providers hereunder at such time) of payments on account of the
Obligations due and payable to all Liquidity Providers hereunder at such time
obtained by all Liquidity Providers at such time or (b) on account of
Obligations owing (but not due and payable) to such Liquidity Provider hereunder
at such time in excess of its PRO RATA share (according to the proportion of (i)
the amount of such Obligations owing to such Liquidity Provider at such time to
(ii) the aggregate amount of such Obligations owing (but not due and payable) to
all Liquidity Providers hereunder at such time) of payments on account of the
Obligations owing (but not due and payable) to all Liquidity Providers hereunder
at such time obtained by all Liquidity Providers at such time, such Liquidity
Provider shall forthwith purchase from the other Liquidity Providers such
participations in the Obligations due and payable or owing to them, as the case
may be, as shall be necessary to cause such purchasing Liquidity Provider to
share the excess payment or other recovery ratably with each of them; PROVIDED,
HOWEVER, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Liquidity Provider, such purchase from each other
Liquidity Provider shall be rescinded and such other Liquidity
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Provider shall repay to the purchasing Liquidity Provider the purchase price to
the extent of such Liquidity Provider's ratable share (according to the
proportion of (i) the purchase price paid to such Liquidity Provider to (ii) the
aggregate purchase price paid to all Liquidity Providers) of such recovery
together with an amount equal to such Liquidity Provider's ratable share
(according to the proportion of (i) the amount of such other Liquidity
Provider's required repayment to (ii) the total amount so recovered from the
purchasing Liquidity Provider) of any interest or other amount paid or payable
by the purchasing Liquidity Provider in respect of the total amount so
recovered. The Seller agrees that the Liquidity Provider so purchasing a
participation from another Liquidity Provider pursuant to this Section 3.05 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Liquidity Provider were the direct creditor of the Trust in the amount
of such participation.
ARTICLE IV
CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES
Section 4.01. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The
making of the Purchase hereunder is subject to the following conditions
precedent:
(a) The Bankruptcy Court shall have entered an order or orders
confirming the Plan of Reorganization, such order or orders shall have
not been judicially stayed and such order or orders shall be
satisfactory in form and substance to the Program Agent.
(b) The Parent shall not have waived any material condition of
the Plan of Reorganization without the consent of the Program Agent and
all material changes and deviations in the Plan of Reorganization from
the Current Plan shall be satisfactory in form and substance to the
Program Agent.
(c) The Plan of Reorganization shall be substantially
consummated (or will be substantially consummated with the
distributions required to be made with the proceeds of the drawings
under the Credit Agreement and the proceeds of the Purchase hereunder).
(d) The Collateral Investors shall have purchased the
Collateral Investor Certificates in accordance with the provisions of
the Loan Agreement.
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(e) The Program Agent shall have received on or before the
Purchase Date the following, each dated such date (unless otherwise
specified), in form and substance satisfactory to the Program Agent:
(i) Certified copies of the resolutions of the Board
of Directors of the Parent, the Servicer, each other
Originator, the Seller and the Trustee approving each
Transaction Document to which it is or is to be a party, and
of all documents evidencing other necessary corporate action
and governmental and other third party approvals and consents,
if any, with respect to each Transaction Document.
(ii) A copy of (A) the charter of the Parent, the
Servicer, each other Originator and the Seller and each
amendment thereto, certified (as of a date reasonably near the
Purchase Date) by the Secretary of State of the jurisdiction
of its incorporation as being a true and correct copy thereof
and (B) a certified true and correct copy of the charter of
the Parent as filed with the Secretary of State of Ohio on the
Purchase Date.
(iii) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the Purchase Date, certifying that (A) the
Seller has paid all franchise taxes to the date of such
certificate and (B) the Parent, the Servicer, each other
Originator and the Seller are in good standing under the laws
of the jurisdiction of its incorporation.
(iv) A certificate of the Parent, the Servicer, each
other Originator and the Seller, signed on behalf of the
Parent, the Servicer, each other Originator and the Seller,
respectively, by its President or a Vice President, dated the
Purchase Date (the statements made in which certificate shall
be true on and as of the Purchase Date), certifying as to (A)
the absence of any amendments to its charter since the date of
the certificate referred to in Section 4.01(e)(ii), (B) a true
and correct copy of its bylaws (and all amendments thereto) as
in effect on the Purchase Date, (C) its due incorporation and
good standing as a corporation organized under the laws of the
jurisdiction of its incorporation and the absence of any
proceeding for its dissolution or liquidation, (D) the truth
of its representations and warranties contained in the
Transaction Documents as though made on and as of the Purchase
Date and (E) the absence of any event occurring and
continuing, or resulting from the Purchase, that constitutes,
or with notice or the lapse of time would constitute, an Early
Amortization Event or a Termination Event (as defined in the
Purchase Agreements).
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(v) A certificate of the Secretary or an Assistant
Secretary (or, in the case of the Trustee, an Assistant
Treasurer) of the Parent, the Servicer, each other Originator,
the Seller and the Trustee certifying the names and true
signatures of the officers of the Parent, the Servicer, each
other Originator, the Seller and the Trustee, respectively,
authorized to sign the Transaction Documents to which such
Person is a party and any other documents contemplated
hereunder or thereunder, and appropriately evidencing the
incumbency of such officers and such Secretary or Assistant
Secretary.
(vi) A certificate of the Trustee, signed on its
behalf by its President or a Vice President or any Assistant
Treasurer, dated the Purchase Date (the statements made in
which certificate shall be true on and as of the Purchase
Date), certifying as to (A) a true and correct copy of its
bylaws (and all amendments thereto) as in effect on the
Purchase Date and (B) the due authentication of the Class A
Certificates.
(vii) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Parent, the Servicer, each other
Originator and the Seller, in form and substance satisfactory
to the Program Agent which shall include, without limitation,
(A) an opinion as to the perfection of the transfers of the
Receivables, (B) an opinion as to enforceability and (C) a
general corporate opinion.
(viii) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Parent, the Servicer, each other
Originator and the Seller, in form and substance satisfactory
to the Program Agent which, shall include (A) a "true sale"
opinion with respect to the sales of Receivables from each
Originator to the Seller or another Originator, as the case
may be, and (B) an opinion relating to the likelihood of a
substantive consolidation of any Originator with the Seller.
(ix) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Parent, the Servicer, each other
Originator and the Seller in form and substance acceptable to
the Program Agent with regard to tax matters, including
Federal, Ohio and New York tax matters and to the effect set
forth in the first sentence of Section 3.07 of the Pooling and
Servicing Agreement.
(x) A favorable opinion of Xxxxxx & Xxxxxx, counsel
for the Trustee, in form and substance satisfactory to the
Program Agent.
(xi) A favorable opinion of Shearman & Sterling,
counsel for the Program Agent, in form and substance
satisfactory to the Program Agent.
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(xii) Stamped-receipt copies or other evidence of
filing of proper financing statements covering the
Receivables, naming the applicable Originator as
seller/debtor, the Seller or another Originator, as the case
may be, as purchaser/secured party and the Trustee or Seller,
as the case may be, as assignee, or other similar instruments
or documents, as may be necessary or, in the opinion of the
Program Agent, desirable under the UCC of any appropriate
jurisdiction or other applicable law to perfect the Seller's
first priority interest in the Receivables and the assignment
thereof by the Seller to the Trustee.
(xiii) Stamped-receipt copies or other evidence of
filing of proper financing statements covering the Receivables
and the other Trust Assets, naming the Seller as seller/debtor
and the Trustee as purchaser/secured party, or other similar
instruments or documents, as may be necessary or, in the
opinion of the Program Agent, desirable under the UCC of any
appropriate jurisdiction or other applicable law to perfect
the Trustee's first priority interest in the Trust Assets.
(xiv) Copies of proper financing statements (Form
UCC-3) and other documents to be duly filed on or about the
Purchase Date, if any, necessary to release all security
interests and other rights of any Person in the Receivables
granted by any Originator or the Seller other than to the
Trustee or the secured parties under the Collateral Documents
(as defined in the Credit Agreement).
(xv) Certified copies of completed requests for
information or a similar search report certified by a party
acceptable to the Program Agent dated a date reasonably near
the Purchase Date, listing all effective financing statements
which name as debtor any Originator or the Seller (under such
Originator's or Seller's present name and any previous name)
and which are filed in the jurisdictions in which filings were
made pursuant to Sections 4.01(e)(xii) and 4.01(e)(xiii)
together with copies of such financing statements (none of
which (except those with respect to which releases have been
obtained pursuant to Section 4.01(e)(xiv) above) shall cover
any property which may be Receivables or Collections).
(xvi) A Collection Account Letter substantially in
the form of Exhibit E to the Pooling and Servicing Agreement,
in respect of each Collection Account maintained by the
Servicer, duly executed by each Person with whom such
Collection Account is maintained.
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(xvii) An executed subordinated note substantially in
the form of Exhibit A to the Purchase Agreement between the
Seller and The El-Bee Chargit Corp., to be delivered by the
Seller thereto.
(xviii) The Class A Certificates, delivered in
accordance with the provisions of Section 2.05(b).
(xix) Evidence that all bank accounts required to be
established and maintained under any Transaction Document
shall have been established.
(xx) Each Transaction Document duly executed by each
party thereto.
(xxi) Evidence of payment of all related fees and
expenses then due and payable in connection with the
Transaction Documents.
Section 4.02. CONDITIONS PRECEDENT TO THE PURCHASE AND ALL
INCREASES. The making of the Purchase hereunder and the funding of each Increase
pursuant to Section 2.02 are subject to the conditions precedent that, on the
Purchase Date or the date of such Increase, the following statements shall be
true (and the acceptance by the Seller of the proceeds of such Purchase or
Increase shall constitute a representation and warranty by the Seller that on
the Purchase Date or the date of such Increase such statements are true):
(a) No event or condition has occurred and is continuing that
constitutes, or with notice or lapse of time or both would constitute,
a Termination Event (as defined in each of the Purchase Agreements),
Early Amortization Event or Servicer Default;
(b) The Revolving Period shall not have ended and an Early
Amortization Period shall not have occurred and be continuing;
(c) The representations and warranties made by the Parent, the
Originators, the Transferor and the Servicer in each Transaction
Document to which it is a party shall be true and correct in all
material respects as if repeated on such date (except only to the
extent such representation or warranty is expressly limited to a
specific date) with respect to the facts and circumstances then
existing;
(d) The Pooling and Servicing Agreement, Series 1997-1
Supplement, Purchase Agreements, Parent Undertaking Agreement,
Intercreditor Agreement, Loan Agreement and each other Transaction
Document shall be in full force and effect;
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(e) After making the Purchase or funding such Increase, the
Class A Invested Amount shall not exceed the Series 1997-1 Class A
Purchase Limit on such day;
(f) The Program Agent shall have received by 1:00 p.m. (New
York City time), on the Purchase Date or the date of such Increase the
Daily Report, which shall be prepared on a pro forma basis and shall
show that the Seller is in compliance with all of the Transaction
Documents (after giving effect to the Purchase or such Increase) to the
extent a showing of such compliance is called for in the form thereof;
(g) Each Originator shall have delivered to the Seller and the
Program Agent the accounts receivable aged trial balance as of the
Purchase Date or the date of such Increase of each such Originator
(which if in magnetic tape or diskette format shall be compatible with
the Seller's, or, if applicable, the Servicer's computer equipment);
(h) The Servicer shall have delivered to the Seller, in form
and substance satisfactory to the Seller and the Program Agent, a
completed Monthly Servicer's Report, together with a listing of the
Accounts under which all Receivables subject to each Transfer through
the date of such Purchase or Increase have arisen, for the most
recently ended reporting period for which such Monthly Servicer's
Report as of the Purchase Date or the date of such Increase is required
to be delivered pursuant to Section 3.04(b) of the Pooling and Service
Agreement and, if the Servicer shall have been given not less than
three Business Days' prior written notice, containing such additional
information as may be reasonably requested by the Seller and the
Program Agent;
(i) Each Originator shall have marked its master data
processing and computer records relating to the Receivables which are
the subject of each Transfer through the date of such Purchase or
Increase, and the Accounts under which such Receivables have arisen,
with a legend, acceptable to the Program Agent, stating that such
Receivables and Collections with respect thereto and other proceeds
thereof, have been sold in accordance with the Transaction Documents;
(j) The Parent shall have entered into the Swap Agreement and
the Cap Agreement, which shall be in form and substance satisfactory to
the Program Agent;
(k) The Program Agent shall have received any other
documentation and opinions required to be delivered with respect to the
Transaction Documents and such other approvals, opinions or documents
as reasonably requested by the Program Agent with not less than three
Business Days' prior written notice;
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(l) The combined aggregate notional amount of the Swap
Agreement and the Cap Agreement shall be equal to at least the sum of
the Class A Invested Amount and the Collateral Invested Amount, in each
case after giving effect to such Purchase or Increase; and
(m) At any time after the Reserve Account has an initial
credit balance equal to or exceeding the Reserve Account Required
Balance, the credit balance in the Reserve Account shall be equal to at
least the Reserve Account Required Balance.
Section 4.03. ADDITIONAL CONDITIONS PRECEDENT. (a) If CRC is
the Purchaser, the making of the Purchase and the funding of each Increase is
subject to the additional condition precedent that the Program Agent shall not
have given notice that CRC will not make the Purchase or fund an Increase.
(b) The funding of any Increase is subject to the additional
condition precedent that the rating of the senior long-term debt obligations of
the Parent shall not be less than (i) BB- if rated by S&P, (ii) Ba3 if rated by
Xxxxx'x or (iii) a rating equivalent to BB/Ba2 as determined by the Program
Agent in its sole judgment in accordance with its customary practices.
ARTICLE V
THE PROGRAM AGENT
Section 5.01. AUTHORIZATION AND ACTION OF THE PROGRAM AGENT.
Each of CRC and each Liquidity Provider hereby appoints and authorizes the
Program Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement and the other Transaction Documents as are delegated
to the Program Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto.
Section 5.02. THE PROGRAM AGENT'S RELIANCE, ETC. Neither the
Program Agent nor any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or the Program Agent
under or in connection with the Transaction Documents, except for its or their
own gross negligence or wilful misconduct. Without limiting the generality of
the foregoing, the Program Agent (a) may consult with independent legal counsel
(including counsel for the Trustee, the Seller, the Transferor or the Servicer),
independent certified public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, (b)
makes no representation or warranty to the Parent, any Originator, the Seller,
the Transferor, the Servicer or any Beneficiary and shall not be
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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23
responsible to the Parent, any Originator, the Seller, the Transferor, the
Servicer or any Beneficiary for any statements, representations or warranties
made in or in connection with this Agreement or any of the Transaction
Documents, (c) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of the
Transaction Documents on the part of the Trustee, the Seller, the Transferor,
any Originator, the Parent or the Servicer or to inspect the property (including
the books and records) of the Trust, the Trustee, the Seller, the Transferor,
any Originator, the Parent or the Servicer, (d) shall not be responsible to the
Parent, any Originator, the Seller, the Transferor, the Servicer or any
Beneficiary for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Class A Certificates or
any other Transaction Document or the condition or value of any Trust Asset or
the creation, perfection or priority of any interest therein created or
purported to be created under or in connection with the Transaction Documents
(except for the execution by the Program Agent of, and legality, validity and
enforceability against the Program Agent of its obligations under, the
Transaction Documents to which the Program Agent is a party), and (e) shall
incur no liability under or in respect of the Transaction Documents by acting
upon any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by facsimile or telex) believed by it to be
genuine and signed or sent by the proper party or parties; except in each case
for gross negligence or wilful misconduct on the part of the Program Agent.
Section 5.03. THE PROGRAM AGENT AND AFFILIATES. Citicorp North
America, Inc. and its Affiliates (including Citibank, N.A.) may generally engage
in any kind of business with the Seller, the Transferor, the Servicer, any
Originator or the Parent, any of their respective Affiliates and any Person who
may do business with or own securities of the Servicer, any Originator, the
Parent or any of their respective Affiliates, all as if Citicorp North America,
Inc. were not the Program Agent and without any duty to account therefor to the
Parent, any Originator, the Seller, the Transferor, the Servicer or any
Beneficiary.
Section 5.04. AMENDMENTS, WAIVERS AND CONSENTS. CRC and the
Program Agent each reserves the right, in its sole discretion (subject to the
next sentence), to exercise any rights and remedies available to the Purchaser
or the Program Agent under the Transaction Documents or pursuant to applicable
law, and also to agree with the other parties hereto to any amendment,
modification or waiver of any Transaction Document, to the extent such
Transaction Document provides for, or requires, the Purchaser's or the Program
Agent's agreement, which agreements shall be binding on each Beneficiary.
Notwithstanding the foregoing, each of CRC and the Program Agent agrees for the
benefit of the Liquidity Providers that it shall not, subject to the terms of
the Transaction Documents:
(a) without the prior written consent of each of the affected
Liquidity Providers,
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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24
(i) reduce in any manner the amount of, or delay the
timing of, distributions to be made to any Series 1997-1
Certificateholder or deposits of amounts to be so distributed,
or
(ii) reduce any fees payable to the Program Agent or
CRC which relate to payments to Liquidity Providers or delay
the dates on which such fees are payable, or
(iii) modify any provision relating to the Reserve
Account, or the amounts required to be deposited therein or
extend the Revolving Period, or
(iv) release the Parent from its obligations under
the Parent Undertaking Agreement, or
(v) amend or waive any Termination Event (as defined
in any Purchase Agreement) or Early Amortization Event under
any Transaction Document relating to the bankruptcy of the
Seller, the Transferor, the Servicer or the Parent, or
(b) without the prior written consent of the Majority of
Series 1997-1 Class A Certificate Interests,
(i) amend, modify or waive any provision of any
Transaction Document which would impair in any material
respect any rights expressly granted to an assignee or
participant, or
(ii) change the definitions of Express Spread
Percentage, Net Loss Percentage, Dilution Ratio, Eligible
Receivable, or Eligible Account, or
(iii) amend any Early Amortization Event to increase
the maximum permitted Net Loss Percentage or Dilution Ratio,
or to decrease the minimum permitted Excess Spread Percentage,
or
(iv) waive violations of the maximum permitted levels
for the Net Loss Percentage or Dilution Ratio, or of the
minimum permitted level for the Excess Spread Percentage,
which violations occur for more than two consecutive months or
by more than 10% of such permitted levels for any time, or
(v) amend the Series 1997-1 Class A Purchase Limit.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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Section 5.05. LIQUIDITY PROVIDER CREDIT DECISION. Each
Liquidity Provider acknowledges that it has, independently and without reliance
upon the Program Agent or any other Liquidity Provider and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Liquidity Provider also
acknowledges that it will, independently and without reliance upon the Program
Agent or any other Liquidity Provider and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
ARTICLE VI
ASSIGNMENTS
Section 6.01. ASSIGNMENT. (a) At any time and from time to
time, CRC may, by notice and delivery to the Program Agent of a fully executed
assignment and assumption agreement assign all or any portion of its rights and
obligations (which portion shall in no event evidence less than $5,000,000 of
the Class A Invested Amount then held by CRC or, if less, the entire Class A
Invested Amount so held by CRC) hereunder to (i) any securitization company
administered by the Program Agent or any of its Affiliates or to any Liquidity
Provider or (ii) any other Person, PROVIDED that, in the case of clause (ii),
(A) such Person is an Eligible Assignee and (B) such assignment shall comply
with any applicable legal requirements including the Securities Act. The Program
Agent shall, promptly upon its receipt of any such notice and assignment and
assumption agreement, notify the Transferor, the Servicer and the Trustee of
such assignment. The assignee shall, upon the effectiveness of such assignment
and assumption agreement and delivery thereof and of such other requested
documentation to the Program Agent, become entitled to the benefits hereof and
subject to the obligations of CRC hereunder.
(b) At any time and from time to time, any Liquidity Provider
may, by notice and delivery to the Program Agent of a fully executed Assignment
and Acceptance, assign to any other Person, all or any portion of its Series
1997-1 Class A Certificate Interest or its interest therein (which portion shall
in no event evidence less than $5,000,000 of the Class A Invested Amount then
held by such Liquidity Provider or, if less, the entire Class A Invested Amount
so held by such Liquidity Provider); PROVIDED that (i) such assignee is an
Eligible Assignee and (ii) such assignment shall comply with any applicable
legal requirements including the Securities Act. Any Liquidity Provider making
any such assignment shall provide notice to the Seller and the Servicer thereof.
The assignee shall, upon the effectiveness of such Assignment and Acceptance and
delivery thereof and of such other requested documentation to the Program Agent,
become entitled to the benefits hereof and subject to the obligations of the
assignor hereunder.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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(c) The Program Agent agrees to cooperate with the Transferor
to effect any assignment under this Section 6.01, and the Transferor agrees 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 this
Section 6.01 (PROVIDED that the Transferor shall not have any obligation to
amend any Transaction Document in connection therewith), the costs of such
documentation to be borne by CRC or the Liquidity Provider, as appropriate.
Section 6.02. RIGHTS OF ASSIGNEE. Upon any assignment in
accordance with this Article VI, (a) the assignee receiving such assignment
shall have all of the rights of such assignor hereunder with respect to the
Class A Certificate or Series 1997-1 Class A Certificate Interest (or portion
thereof) or rights associated therewith being assigned and (b) all references to
such assignor in the Transaction Documents shall be deemed to apply to such
assignee to the extent of its interest therein and in the related Collections.
Section 6.03. NOTICE OF ASSIGNMENT. Each assignor shall
provide notice to the Seller, the Program Agent and the Trustee of any
assignment of any Class A Certificate or Series 1997-1 Class A Certificate
Interest (or portion thereof) or rights associated therewith by such assignor to
any assignee.
Section 6.04. REGISTER. The Program Agent shall maintain a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Liquidity
Providers and the Commitment of each Liquidity Provider from time to time (the
"REGISTER"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Seller, the Program Agent, the Trustee
and the Liquidity Providers may treat each Person whose name is recorded in the
Register as a Liquidity Provider hereunder for all purposes of the Transaction
Documents. The Register shall be available for inspection by the Seller, the
Parent, the Trustee or any Liquidity Provider at any reasonable time and from
time to time upon reasonable prior notice.
Section 6.05. RESTRICTIONS ON ASSIGNMENTS AND PARTICIPATIONS.
Notwithstanding any provision of this Agreement to the contrary, neither CRC nor
any Liquidity Provider shall assign any of its rights or obligations hereunder
to any Person (other than an assignment by CRC to a Liquidity Provider) that is
not a United States Person (as defined in Section 7701(a)(30) of the Internal
Revenue Code) unless such Person shall have provided the Seller and the Program
Agent with two original Internal Revenue Service forms 1001 or 4224 (or a
successor form certifying that the income from the Class A Certificates is
effectively connected with the conduct of such Person's trade or business in the
United States or that such income is exempt from withholding under an applicable
tax treaty). Notwithstanding Sections 6.01 and 7.01, neither CRC nor any
Liquidity Provider shall be entitled to assign (or sell participations in) all
or any portion of its rights and obligations hereunder to (i) a partnership,
grantor trust
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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27
or S corporation, as such terms are defined in the Internal Revenue Code or (ii)
any Person if, following such assignment or sale to such other Person, the Trust
would have more than 100 beneficial owners of Certificates (taking into account
the attribution rules of Treasury Regulation Section 1.7704-2(h)).
Notwithstanding the preceding sentence, CRC and each Liquidity Provider shall be
entitled to assign (or sell a participation in) its rights and obligations
hereunder to a partnership that is a securitization company managed by Citicorp
North America, Inc., PROVIDED that the Seller receives evidence reasonably
satisfactory to it that such sale or assignment will not cause the Trust to have
at any time more than 100 beneficial owners (taking into account the attribution
rules of Treasury Regulation Section 1.7704-2(h)).
ARTICLE VII
PARTICIPATIONS
Section 7.01. PARTICIPATIONS. At any time and from time to
time any Liquidity Provider may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Series
1997-1 Class A Certificate Interests owned by it); PROVIDED, HOWEVER, that (i)
such Liquidity Provider's obligations under this Agreement (including its
Commitment) shall remain unchanged, (ii) such Liquidity Provider shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Seller, the Program Agent, CRC and the other Liquidity
Providers shall continue to deal solely and directly with such Liquidity
Provider in connection with the rights of such Liquidity Provider and the
obligations of such Liquidity Provider under this Agreement and (iv) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Transaction Document, or any consent
to any departure by any Person therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Class A Certificates or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Class A Certificates or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation, or release all or substantially all of the Receivables.
Anything herein to the contrary notwithstanding, the Seller shall not, at any
time, be obligated to pay to any Liquidity Provider any sum in excess of the sum
the Seller would have been obligated to pay to such Liquidity Provider hereunder
if such Liquidity Provider had not sold any participation in its rights and
obligations under this Agreement.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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ARTICLE VIII
MISCELLANEOUS
Section 8.01. AMENDMENTS, ETC. Subject to Section 5.04, no
amendment of any provision of this Agreement shall in any event be effective
unless the same shall be in writing and signed by the parties hereto. Any waiver
or consent shall be effective only if signed by the party waiving any right, in
the specific instance and for the specific purpose for which given.
Section 8.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including telex and facsimile communication) and shall be personally
delivered or sent by certified mail, postage prepaid, or overnight courier or
facsimile, to the intended party at the address or facsimile number of such
party set forth under its name on the signature pages hereof or at such other
address or facsimile number as shall be designated by such party in a written
notice to the other parties hereto. All such notices and communications shall be
effective (a) if personally delivered, when received, (b) if sent by certified
mail, four Business Days after having been deposited in the mail, postage
prepaid, (c) if sent by overnight courier, one Business Day after having been
given to such courier, unless sooner received by the addressee and (d) if
transmitted by facsimile, when sent, upon receipt confirmed by telephone or
electronic means, except that notices and communications pursuant to Articles II
and III shall not be effective until received. Notices and communications sent
hereunder on a day that is not a Business Day shall be deemed to have been sent
on the next following Business Day.
Section 8.03. NO WAIVER; REMEDIES; SET-OFF. No failure on the
part of any Beneficiary to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. Without limiting the
foregoing, the Program Agent and each Liquidity Provider is hereby authorized by
the Seller at any time and from time to time after the occurrence and during the
continuance of an Early Amortization Event, to the fullest extent permitted by
law, to set-off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by the Program Agent and each Liquidity Provider to or for the credit
or the account of the Seller against any and all of the Obligations of the
Seller now or hereafter existing, to the Program Agent, any Liquidity Provider,
any Affected Person or CRC, or their respective successors and assigns,
irrespective of whether such Person shall have made any demand under any
Transaction Document and although such Obligations may be unmatured; PROVIDED,
HOWEVER, that no such Person shall exercise any such right of set-off
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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29
without the prior written consent of the Program Agent. Each set-off by CRC or
any Liquidity Provider under this Section 8.03 against the Class A Invested
Amount shall reduce the Class A Invested Amount accordingly.
Section 8.04. BINDING EFFECT; SURVIVAL. (a) This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that nothing in the
foregoing shall be deemed to authorize any assignment not permitted by Section
6.01. This Agreement shall create and constitute the continuing obligation of
the parties hereto in accordance with its terms, and shall remain in full force
and effect until one year and one day after the earlier of the date on which all
Obligations are indefeasibly paid in full or the date on which the Trust shall
terminate in accordance with the Pooling and Servicing Agreement. The provisions
of Article III shall be continuing and shall survive any termination of this
Agreement.
(b) A Liquidity Provider shall become a party hereto (i) by
executing and delivering to the Program Agent a counterpart of the signature
page to this Agreement or (ii) in accordance with the procedures set forth in
Article VI hereof. Thereupon, upon acceptance and recording by the Program Agent
in the Register, such Liquidity Provider shall become a party to this Agreement
from and after the date of execution of such signature page. Liquidity Providers
may become parties hereto at different times and from time to time in accordance
with the foregoing procedure.
Section 8.05. NO PROCEEDINGS. Each of CRC, the Seller (on its
own behalf and on behalf of its Affiliates), the Trustee, Citicorp North
America, Inc., individually and as Program Agent, and each Liquidity Provider
hereby agrees that it will not institute against CRC, or join any other Person
in instituting against CRC, any case or proceeding of the type referred to in
the definition of "INSOLVENCY EVENT" so long as any CP Notes issued by CRC
shall be outstanding or there shall not have elapsed one year plus one day since
the last day on which any such CP Notes shall have been outstanding. The
foregoing shall not limit the right of CRC, the Seller, the Trustee, Citicorp
North America, Inc., individually or as the Program Agent, or any Liquidity
Provider to file any claim in or otherwise take any action with respect to any
such case or proceeding that was instituted against CRC by any Person other than
CRC, the Seller, the Trustee, Citicorp North America, Inc., individually or as
the Program Agent, or any Liquidity Provider.
Section 8.06. CAPTIONS AND CROSS REFERENCES. The various
captions (including the table of contents) in this Agreement are provided solely
for convenience of reference and shall not affect the meaning or interpretation
of any provision of this Agreement.
Section 8.07. INTEGRATION. This Agreement, together with the
other Transaction Documents, contains a final and complete integration of all
prior expressions by the parties
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
34
30
hereto with respect to the subject matter
hereof and, together with all the other Transaction Documents, shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, superseding all prior oral or written understandings.
Section 8.08. REPLACEMENT OF LIQUIDITY PROVIDERS. So long as
CRC or any securitization company administered by the Program Agent or any of
its Affiliates is a Purchaser, the Program Agent shall have the right, in its
sole discretion, to terminate the rights and obligations of any or all Liquidity
Providers to make the Purchase or fund Increases in the event that the
applicable rating of such Liquidity Provider shall be downgraded below that
described in the definition of "Eligible Assignee". Such termination shall be
effective upon written notice to such effect delivered by the Program Agent to
such Liquidity Provider, whereupon the Term of such Liquidity Provider's
Commitment shall terminate. Upon such termination, such Liquidity Provider shall
cease to have any rights or obligations with respect to future Increases under
this Agreement but shall continue to have the rights and obligations of a
Liquidity Provider with respect to any Purchase or Increases funded by it under
this Agreement prior to such termination. The Program Agent shall use reasonable
efforts to replace any Liquidity Provider removed pursuant to this Section 8.08.
Section 8.09. CONFIDENTIALITY. The Trustee, the Program Agent
and the Class A Certificateholders agree, and shall cause their agents or
representatives, to hold in confidence all Confidential Information; PROVIDED
that nothing herein shall prevent any Class A Certificateholder from delivering
copies of any financial statements and other documents constituting Confidential
Information, or disclosing any other Confidential Information, to (i) such Class
A Certificateholder's directors, officers, employees, agents and professional
consultants, (ii) any other Class A Certificateholder or any Rating Agency,
(iii) any Person to which such Class A Certificateholder offers to sell or
assign or sells or assigns such Class A Certificate or any part thereof or any
rights associated therewith or participation therein, PROVIDED that such Person
shall have agreed to hold in confidence all Confidential Information as set
forth herein, (iv) any federal or state regulatory authority having jurisdiction
over such Class A Certificateholder, (v) the National Association of Insurance
Commissioners or any similar organization, (vi) any state, federal or foreign
authority or examiner regulating banks or banking, (vii) to any affiliate,
independent or internal auditor, agent, employee or attorney having a need to
know the same, PROVIDED that such Person is advised of the confidential nature
of the information being disclosed and each such recipient agrees to be bound by
the terms of this Section or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (a) in compliance with any law, rule,
regulation or order applicable to such Class A Certificateholder, (b) in
response to any subpoena or other legal process or (c) in connection with any
litigation to which such Class A Certificateholder is a party.
Section 8.10. REIMBURSEMENT OF PROGRAM AGENT. Each Liquidity
Provider will on demand reimburse the Program Agent its Liquidity Provider
Commitment Percentage of
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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31
any and all reasonable costs and expenses (including reasonable fees and
disbursements of counsel) which may be incurred in connection with collecting
amounts owed with respect to any Class A Certificate in which such Liquidity
Provider purchases Series 1997-1 Certificate Interests for which the Program
Agent is not promptly reimbursed by the Seller or otherwise. Should the Program
Agent later be reimbursed by the Seller or CRC for any such amount, the Program
Agent shall immediately pay to each Liquidity Provider its Liquidity Provider
Commitment Percentage of such amount.
Section 8.11. LIMITATION OF LIABILITY. It is expressly
understood and agreed by the parties hereto that, except as otherwise expressly
provided in any Transaction Document, (a) this Agreement is executed and
delivered by Bankers Trust Company, not individually or personally but solely as
Trustee of the Trust, in the exercise of the powers and authority conferred and
vested in it, (b) the representations, undertakings and agreements herein made
on the part of the Trust are made and intended not as personal representations,
undertakings and agreements by Bankers Trust Company, but are made and intended
for the purpose of binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on Bankers Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties who
are signatories to this Agreement and by any person claiming by, through or
under such parties, and (d) under no circumstances shall Bankers Trust Company
be personally liable for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement,
except to the extent provided in this Agreement.
Section 8.12. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE
RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
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Section 8.13. SUBMISSION TO JURISDICTION. (i) Each of the
parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive 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 Agreement 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 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
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement 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 Agreement 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.
Section 8.14. CONSENT TO SERVICE OF PROCESS. Each party to
this Agreement irrevocably consents to service of process by personal delivery,
certified mail, postage prepaid or overnight courier. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
Section 8.15. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by the different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature page of this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
37
Section 8.16. WAIVER OF JURY TRIAL. Each party to this
Agreement waives any right to a trial by jury in any action or proceeding to
enforce or defend any rights under or relating to this Agreement, 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
Agreement or any other Transaction Document, and agrees that any such action or
proceeding shall be tried before a court and not before a jury.
IN WITNESS WHEREOF, the parties hereto have caused this Series
1997-1 Certificate Purchase Agreement to be duly executed by their respective
officers thereunto duly authorized as of the date first above written.
THE EL-BEE RECEIVABLES CORPORATION,
as Seller
By:_________________________________
Name:
Title:
Address: 0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
Attn: President
Tel: (937) 296-
Fax: (937) 296-
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
38
CORPORATE RECEIVABLES CORPORATION,
as Purchaser
By: CITICORP NORTH AMERICA, INC., as
Attorney-in-Fact
By:_________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Radford West
Tel: (000) 000-0000
Fax: (000) 000-0000
CITICORP NORTH AMERICA, INC.,
as Program Agent
By:_________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Radford West
Tel: (000) 000-0000
Fax: (000) 000-0000
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
39
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:_________________________________
Name:
Title:
Address: Bankers Trust Company, as Trustee
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust and Agency
Group/Structured Finance Team
Tel: (000) 000-0000
Fax: (000) 000-0000
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
40
LIQUIDITY PROVIDERS:
Liquidity Provider
Commitment:
Forty-two Million Dollars, CITIBANK, N.A., as Liquidity Provider
$42,000,000
By:_________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Radford West
Tel: (000) 000-0000
Fax: (000) 000-0000
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
41
Liquidity Provider
Commitment:
Thirty Million Dollars,
$30,000,000 ABN AMRO, N.V., as Liquidity Provider
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Address: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
42
Liquidity Provider
Commitment:
Twenty-five Million Dollars,
$25,000,000 BHF BANK AKTIENGESELLSCHAFT, as
Liquidity Provider
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
43
Liquidity Provider
Commitment:
Twenty Million Dollars,
$20,000,000 DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as
Liquidity Provider
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Address: 000 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
44
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Series 1997-1 Certificate Purchase
Agreement dated as of December __, 1997 (as amended, supplemented or otherwise
modified from time to time, the "CERTIFICATE PURCHASE AGREEMENT") among The
El-Bee Receivables Corporation, as seller, Corporate Receivables Corporation, as
purchaser (the "PURCHASER"), the financial institutions party thereto, as
Liquidity Providers (each a "LIQUIDITY PROVIDER"), Citicorp North America, Inc.,
as program agent (the "PROGRAM AGENT") for the Purchaser and the Liquidity
Providers, and Bankers Trust Company, as trustee (the "TRUSTEE"). Terms defined
in the Certificate Purchase Agreement unless otherwise defined herein are used
herein as defined therein.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. As of the Effective Date (defined below), the Assignor
hereby sells and assigns, without recourse, to the Assignee, and the Assignee
hereby purchases and assumes, without recourse to or representation of any kind
(except as set forth below) from Assignor, an interest in and to the Assignor's
rights and obligations under the Certificate Purchase Agreement and under any
other Transaction Document equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the
Certificate Purchase Agreement and any other Transaction Document, including the
Assignor's Liquidity Provider Commitment, Liquidity Provider Commitment
Percentage, Series 1997-1 Class A Certificate Interests and Class A Invested
Amount (such rights and obligations assigned hereby being the "ASSIGNED
INTERESTS"). After giving effect to such sale and assignment, the Assignee's
Liquidity Provider Commitment and Liquidity Provider Commitment Percentage will
be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder free
and clear of any Lien created by Assignor; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Transaction
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
or ownership interest created or purported to be created under or in connection
with, the Transaction Documents or any other instrument or document furnished
pursuant thereto or the condition or value of any Trust Asset or any interest
therein; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the condition (financial or otherwise) of any of
the Transferor, any other Originator, the Servicer, the Parent or the Trustee or
the performance or observance
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
45
A-2
by any Person of any of its obligations under any Transaction Document or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Certificate Purchase Agreement, the Pooling and Servicing Agreement,
together with copies of any financial statements delivered pursuant to Sections
2.05(f) and 3.03(b)(vii) thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Program Agent, the Assignor or any other Liquidity
Provider and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any of the Transaction Documents; (iii) confirms that it
is an Eligible Assignee; (iv) appoints and authorizes the Program Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Transaction Documents as are delegated to the Program Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Transaction Documents are
required to be performed by it as a Liquidity Provider; (vi) confirms that the
assignment hereunder complies with any applicable legal requirements including
the Securities Act; (vii) confirms that such Assignee is a United States Person
(as defined in Section 7701(a)(30) of the Internal Revenue Code) or that such
Assignee shall have provided the Transferor with two Internal Revenue Service
forms 1001 or 4224 (or a successor form) certifying that the income from the
Class A Certificates is effectively connected with the conduct of such Person's
trade or business in the United States or that such income is exempt from
withholding under an applicable tax treaty; (viii) confirms that such Assignee
is not a partnership, grantor trust or S corporation (as such terms are defined
in the Internal Revenue Code); (ix) confirms that the assignment hereunder will
not result in the Trust having more than 100 beneficial owners of Certificates
(taking into account the attribution rules of Treasury Regulation Section
1.7704-2(h)); and (x) attaches any other U.S. Internal Revenue Service forms
required under Section 3.03 of the Certificate Purchase Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Program Agent for acceptance and recording by the
Program Agent. The effective date for this Assignment and Acceptance (the
"EFFECTIVE DATE") shall be the date of acceptance hereof by the Program Agent,
unless a later effective date is specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Program Agent, as
of the Effective Date, (i) the Assignee shall be a party to and bound by the
provisions of the Certificate Purchase Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Liquidity
Provider thereunder and under any
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
46
A-3
other Transaction Document and (ii) the Assignor shall, to the extent provided
in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Certificate Purchase Agreement and under any other
Transaction Document.
6. Upon such acceptance and recording by the Program Agent,
from and after the Effective Date, the Program Agent and Trustee shall make all
payments under the Certificate Purchase Agreement and the Assigned Interests
(including, without limitation, all payments of the Class A Invested Amount,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
Certificate Purchase Agreement and the Assigned Interests for periods prior to
the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
47
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Liquidity Provider Commitment assigned: $__________
Liquidity Provider Commitment Percentage assigned: __________%
Assignor's Liquidity Provider Commitment
after assignment: $__________
Assignor's Liquidity Provider Commitment
Percentage after assignment: __________%
Effective Date (if later than date of acceptance by Program Agent):
________ __, ____
[NAME OF ASSIGNOR], as Assignor
By
Name:
Title:
Dated: _________ __, ____
[NAME OF ASSIGNEE], as Assignee
By
Name:
Title:
Dated:_________ __, ____
Address for Notices:
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
48
2
Accepted this ____ day
of _____________, ____
CITICORP NORTH AMERICA, INC.,
as Program Agent
By
----------------------------
Name:
Title:
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
49
EXHIBIT B
FORM OF SERIES 1997-1 NOTICE OF PURCHASE
[Date]
Citicorp North America, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The El-Bee Receivables Corporation
0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
Attention: President
Reference is made to the Series 1997-1 Certificate Purchase Agreement dated
December __, 1997 (the "SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT") among The
El-Bee Receivables Corporation, as seller, Corporate Receivables Corporation, as
purchaser, the Liquidity Providers party thereto, Citicorp North America, Inc.,
as program agent, and Bankers Trust Company, as trustee. Capitalized terms not
defined herein have the meaning specified in the Series 1997-1 Certificate
Purchase Agreement.
Notice is hereby given that the undersigned requests the making of the Purchase
on ________ __, ____ in the amount of $_________.
THE EL-BEE RECEIVABLES
CORPORATION
By
------------------------------
Name:
Title:
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
50
EXHIBIT C
FORM OF NOTICE OF INCREASE
[Date]
Citicorp North America, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The El-Bee Receivables Corporation
0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
Attention: President
Reference is made to the Series 1997-1 Certificate Purchase Agreement dated
December __, 1997 (the "SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT") among The
El-Bee Receivables Corporation, as seller, Corporate Receivables Corporation, as
purchaser, the Liquidity Providers party thereto, Citicorp North America, Inc.,
as program agent, and Bankers Trust Company, as trustee. Capitalized terms not
defined herein have the meaning specified in the Series 1997-1 Certificate
Purchase Agreement.
Notice is hereby given that the undersigned requests the funding of an Increase
in the amount of $___________ on _________ __, ______.
THE EL-BEE RECEIVABLES
CORPORATION
By __________________________
Name:
Title:
SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT
