FIRST AMENDMENT TO
CLASS A NOTE PURCHASE AGREEMENT
FIRST AMENDMENT, dated as of September 15, 1999 (this "AMENDMENT"), to
the CLASS A NOTE PURCHASE AGREEMENT, dated as of July 15, 1999, as heretofor
supplemented (the "ORIGINAL NOTE PURCHASE AGREEMENT" and, as amended by this
Amendment and as hereafter amended, supplemented or otherwise modified from time
to time, the "NOTE PURCHASE AGREEMENT"), by and among XXXX FUNDING TRUST, a
Delaware business trust (together with its successors and assigns, the
"ISSUER"), ZALE DELAWARE, INC., a Delaware corporation ("Z DEL"), individually
and as Seller, JEWELERS NATIONAL BANK, a national banking association ("JNB"),
as Servicer, the entities which from time to time are parties thereto as CLASS A
PURCHASERS (the "CLASS A PURCHASERS"), the AGENTS for the Purchaser Groups (as
defined in the Original Note Purchase Agreement) from time to time parties
thereto (each such party, together with their respective successors in such
capacity, an "AGENT"), and CREDIT SUISSE FIRST BOSTON, a Swiss banking
corporation acting through its New York Branch, as administrative agent for the
Class A Purchasers (together with its successors in such capacity, the
"ADMINISTRATIVE AGENT"). Terms used in this Amendment without definition are
used as defined in or for purposes of the Original Note Purchase Agreement.
RECITALS
A. Pursuant to the Original Note Purchase Agreement and
subject to the terms, conditions and limitations set forth or referred to
therein, the initial Class A Purchasers purchased the Class A Notes on the
Closing Date and agreed (on a committed or noncommitted basis, as applicable)
from time to time thereafter to purchase Class A Note Principal Balance
Increases.
B. By Transfer Supplements effective immediately prior to the
effectiveness of this Amendment, the Class A Purchasers in the Initial Purchaser
Group have assigned a portion of their respective interests in the Class A Note
Principal Balance, the Maximum Purchase Amount of the CP Conduit in such
Purchaser Group and the Commitment of the Liquidity Purchaser in such Purchaser
Group to members of a second Purchaser Group.
C. The Issuer and Z Del have requested certain modifications
to the Original Note Purchase Agreement, including an increase in the Total
Commitment thereunder and the addition of a third Purchaser Group.
D. Upon the terms and conditions contained in this Amendment,
the parties hereto are willing to agree to such modifications.
AGREEMENTS
In consideration of the premises and of the agreements herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. MODIFICATIONS TO ORIGINAL NOTE PURCHASE AGREEMENT.
(a) Subsection 2.3 (b) of the Original Note Purchase Agreement is hereby
amended and restated to read as follows:
"(b) If and to the extent that, and only for so long
as, a CP Conduit at any time determines in its sole discretion for any
reason whatsoever that it is unable to raise or is precluded or
prohibited from raising, or that it is not advisable to raise, funds
through the issuance of Commercial Paper Notes in the commercial paper
market of the United States to finance its purchase or maintenance of
its Percentage Interest of the Covered Portion of the Class A Principal
Balance or any portion thereof (which determination may be based on any
allocation method employed in good faith by such CP Conduit),
including, without limitation, by reason of market conditions or by
reason of insufficient availability under any of its Support Facilities
or the downgrading of any of its Support Parties, upon notice from such
CP Conduit to the Agent for its Purchaser Group and the Issuer, such
portion of such CP Conduit's Percentage Interest of the Class A
Principal Balance shall bear interest at a rate per annum equal to the
sum of the Alternative Rate plus the applicable Class A Program
Utilization Fee Rate, rather than as otherwise determined pursuant to
subsection 2.3(a) of this Agreement."
(b) The parties hereto acknowledge and agree that, for
purposes of Series 1999-A, the words "adjusted note principal amount," as such
words are used in the definition of "Aggregate Adjusted Note Principal Amount"
in Annex I to the Indenture and the Purchase and Servicing Agreement, are
intended to mean the aggregate unpaid principal balance of the Series 1999-A
Notes (without any reduction thereof by reason of Class A Charge-Offs, Class B
Charge-Offs or reductions in the Class B Invested Amount in respect of
Reallocated Class B Principal Collections).
(c) The parties hereto acknowledge that, through Transfer
Supplements effective immediately prior to this Amendment, Falcon Asset
Securitization Corporation, a Delaware corporation ("Falcon"), became a party to
the Note Purchase Agreement as a CP Conduit and Bank One, N.A. ("Bank One"),
became a party to the Note Purchase Agreement as a Liquidity Purchaser for
Falcon, together constituting a second Purchaser Group (the "Falcon Purchaser
Group"). The Maximum Purchase Amount for Falcon and the Commitment for Bank One
are each hereby amended to be $150,000,000, Bank One's Liquidity Percentage
shall remain 100%, and Bank One is hereby appointed as Agent for the Falcon
Purchaser Group. For purposes of the Note Purchase Agreement, Falcon shall be a
"CP Purchaser" and Bank One shall be a "Liquidity Purchaser" and an "Agent."
(d) EagleFunding Capital Corporation, a Delaware corporation
("EagleFunding"), as a CP Conduit, and BankBoston, N.A. ("BankBoston"), as a
Liquidity Purchaser for EagleFunding, are hereby joining the Note Purchase
Agreement as a third Purchaser Group (the "EagleFunding Purchaser Group"),
having a Maximum Purchase Amount and a Commitment, respectively, equal to
$50,000,000 and with BankBoston having a Liquidity Percentage of 100%.
BancBoston Xxxxxxxxx Xxxxxxxx, Inc. is hereby appointed as Agent for the
EagleFunding Purchaser Group. For purposes of the Note Purchase Agreement,
EagleFunding shall be a "CP Purchaser;" BankBoston shall be a "Liquidity
Purchaser" and BancBoston Xxxxxxxxx Xxxxxxxx, Inc. shall be an "Agent."
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(e) After giving effect to said Transfer Supplements and to
the changes set forth in paragraphs (c) and (d) above, the respective Maximum
Purchaser Amounts, Commitments, Purchaser Percentages, Liquidity Percentages,
addresses for notices, requests or demands (for purposes of subsection 9.2(a) of
the Note Purchase Agreement), addresses for payments (for purposes of subsection
9.2(b) of the Note Purchase Agreement) and Investing Offices of the Class A
Purchasers (in each case subject to modification from time to time as provided
in the Note Purchase Agreement) are as set forth on Schedule I to this
Amendment.
SECTION 2. MISCELLANEOUS. (a) This Amendment shall become effective as
of the opening of business on September 15, 1999.
(b) Each of Z Del, JNB and the Issuer hereby severally
represents and warrants to the Class A Purchasers, the Agents and the
Administrative Agent that
(i) no Termination Event, or any event that, after
the giving of notice or the lapse of time, would constitute a
Termination Event, has occurred and is continuing as of the date
hereof;
(ii) all of its respective representations and
warranties (individually or in any other capacity) contained in the
Note Purchase Agreement or otherwise made in writing pursuant to any of
the provisions thereof are true and correct in all material respects as
of the date hereof with the same force and effect as though such
representations and warranties had been made on and as of such date
(unless such representations and warranties specifically relate to an
earlier date);
(iii) it has the power and authority to execute,
deliver and perform this Amendment and the Note Purchase Agreement and
all the transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and performance
of this Amendment and the Note Purchase Agreement;
(iv) when executed and delivered by each other party
hereto, this Amendment and the Note Purchase Agreement will constitute
its legal, valid and binding agreement, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws of
general applicability relating to or affecting creditors' rights
generally and the rights of creditors from time to time in effect and
except that enforceability of its obligations hereunder and thereunder
is also subject to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law,
and indemnification sought in respect of securities laws violations may
be limited by public policy;
(v) no consent, license, approval or authorization
of, or registration with, any governmental authority, bureau or agency
is required to be obtained by it in connection with its execution,
delivery or performance of this Amendment or the Note Purchase
Agreement that has not been duly obtained and is in full force and
effect on the date hereof, except such that may be required by the blue
sky laws of any state and except those which the failure to obtain,
individually or in the aggregate, would not have a
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material adverse effect on it or on the transactions contemplated by,
or its ability to perform its respective obligations under, this
Amendment, the Note Purchase Agreement or the Related Documents; and
(vi) its execution, delivery and performance of each
of this Amendment and the Note Purchase Agreement do not violate any
provision of any existing law or regulation applicable to it, any order
or decree of any court to which it is subject, its charter or by-laws
or any mortgage, indenture, contract or other agreement to which it is
a party or by which it or any significant portion of its properties is
bound (other than violations of such laws, regulations, orders,
decrees, mortgages, indentures, contracts and other agreements which do
not affect the legality, validity or enforceability of any of such
agreements or the Receivables and which, individually or in the
aggregate, would not have a material adverse effect on it or on the
transactions contemplated by, or its ability to perform its respective
obligations under, this Amendment, the Note Purchase Agreement or the
Related Documents).
(c) Each of Falcon, Bank One, EagleFunding and BankBoston
hereby severally (with respect to itself only) (i) makes the representations and
warranties to, and agreements with, the Issuer, set forth in Section 4.4 of the
Note Purchase Agreement, and (ii) agrees to be bound by the provisions of the
Note Purchase Agreement as a Class A Purchaser and, as applicable, as a CP
Conduit or a Liquidity Purchaser. Each of Bank One and BancBoston Xxxxxxxxx
Xxxxxxxx, Inc. hereby severally (with respect to itself only) agrees to be bound
by the provisions of the Note Purchase Agreement as an Agent.
(d) The Administrative hereby confirms that it has not imposed
any conditions on the increase in the Total Commitment herein provided pursuant
to clause (C) of the proviso to subsection 2.2(f) of the Note Purchase
Agreement.
(e) Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Original
Note Purchase Agreement shall remain unamended and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms, and except as expressly provided herein, this Amendment shall not
constitute or be deemed to be a waiver of or compliance with or a consent to
noncompliance with any term or condition of the Note Purchase Agreement or any
Related Document. All references to the Note Purchase Agreement in any Related
Document shall be deemed to mean the Original Note Purchase Agreement, as
amended by this Amendment and as it may be further amended, supplemented,
extended, modified or restated from time to time in accordance with its terms.
This Amendment shall not constitute a novation of the Note Purchase Agreement,
but shall constitute an amendment thereof. The parties hereto agree to be bound
by the terms and conditions of the Original Note Purchase Agreement, as amended
by this Amendment, as though the terms and conditions of the Note Purchase
Agreement were set forth herein.
(d) All representations and warranties made hereunder and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Amendment.
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(e) This Amendment may be amended, supplemented or otherwise
modified only as provided in Section 9.1 of the Note Purchase Agreement.
(f) This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
(g) Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction.
(h) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICTS OF LAW PROVISIONS.
(i) The provisions of Sections 9.10 (Jurisdiction; Consent to
Service of Process), 9.12 (Limited Recourse; No Proceedings), and 9.14 (Waiver
of Jury Trial) of the Original Note Purchase Agreement are applicable to this
Amendment and to the Note Purchase Agreement as though set forth herein in their
entireties.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXX FUNDING TRUST
By: Wilmington Trust Company, not in
its individual capacity but solely as
Owner Trustee under the Amended and
Restated Trust Agreement dated as of
July 15, 1999
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Name: XXXXX X. XXXXXX
Title: Vice President
XXXX DELAWARE, INC., individually and as
Seller
By: /s/ XXXXXXX X. XXXXXXXXXX
---------------------------------------
Name: XXXXXXX X. XXXXXXXXXX
Title: Senior Vice President-
Treasurer
JEWELERS NATIONAL BANK, as Servicer
By: /s/ XXX X. XXXX
---------------------------------------
Name: XXX X. XXXX
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Administrative Agent
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: XXXXXX XXXXX
Title: Vice President
By: /s/ XXXXXXXXX X. XXXXXX
---------------------------------------
Name: XXXXXXXXX X. XXXXXX
Title: Associate
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CLASS A PURCHASERS
GRAMERCY PURCHASER GROUP:
GRAMERCY CAPITAL CORPORATION,
as a CP Conduit
By Credit Suisse First Boston, New York
Branch, its Attorney-in-Fact
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Name: XXXX X. XXXXXXX
Title: Vice President
By: /s/ XXXXX XXXXXXX
---------------------------------------
Name: XXXXX XXXXXXX
Title: Associate
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as a
Liquidity Purchaser and
as Agent for the Gramercy
Purchaser Group
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: XXXXXX XXXXX
Title: Vice President
By: /s/ XXXXXXXXX X. XXXXXX
---------------------------------------
Name: XXXXXXXXX X. XXXXXX
Title: Associate
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FALCON PURCHASER GROUP:
FALCON ASSET SECURITIZATION
CORPORATION, as a CP Conduit
By: /s/ XXXXXXXXX XXXXX
---------------------------------------
Name: XXXXXXXXX XXXXX
Title: Authorized [ILLEGIBLE]
BANK ONE, N.A., as a Liquidity Purchaser
and as Agent for the Falcon Purchaser
Group
By: /s/ XXXXXXXXX XXXXX
---------------------------------------
Name: XXXXXXXXX XXXXX
Title: Vice President
EAGLEFUNDING PURCHASER GROUP:
EAGLEFUNDING CAPITAL CORPORATION,
as a CP Conduit
By BancBoston Xxxxxxxxx Xxxxxxxx, Inc,
its Attorney-in-Fact
By: /s/ XXXX XXXXXX
---------------------------------------
Name: XXXX XXXXXX
Title: Vice President
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BANKBOSTON, N.A., as a Liquidity Purchaser
for the EagleFunding Purchaser Group
By: /s/ XXXX XXXXXX
---------------------------------------
Name: XXXX XXXXXX
Title: Vice President
BANCBOSTON XXXXXXXXX XXXXXXXX, INC.,
as Agent for the EagleFunding Purchaser
Group
By: /s/ XXXX XXXXXX
---------------------------------------
Name: XXXX XXXXXX
Title: Vice President
The provisions of subsection 1(b)
above are hereby acknowledged:
THE BANK OF NEW YORK
as Indenture Trustee
By: /s/ XXXXX XXXXXXX
--------------------------------
Name: XXXXX XXXXXXX
Title: Assistant Treasurer
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SCHEDULE I TO
FIRST AMENDMENT TO
CLASS A NOTE PURCHASE AGREEMENT
DESCRIPTION OF PURCHASER GROUPS
I. GRAMERCY PURCHASER GROUP
GRAMERCY CAPITAL CORPORATION
A. Type of Purchaser: CP Conduit
B. Maximum Purchase Amount (applicable only to CP Conduit): $150,000,000
C. Commitment: (n/a to CP Conduit): N/A
D. Purchaser Percentage (n/a to Liquidity Purchaser): 42.857143%
E. Liquidity Percentage (applicable only to Liquidity Purchaser): N/A
F. Notice Address:
x/x Xxxxxx Xxxxxx Xxxxx Xxxxxx,
Xxx Xxxx Branch, its Administrative Agent
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset Finance Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
G. Address for Payments:
The Bank of New York
ABA #000-000-000
For credit to Credit Suisse First Boston CS Remittance/Gramercy Capital
Account #8900386630
H. Investing Office:
Eleven Madison Avenue
New York, New York
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH
A. Type of Purchaser: Liquidity Purchaser
B. Maximum Purchase Amount (applicable only to CP Conduit): N/A
C. Commitment: (n/a to CP Conduit): $150,000,000
D. Purchaser Percentage (n/a to Liquidity Purchaser): N/A
E. Liquidity Percentage (applicable only to Liquidity Purchaser): 100%
F. Notice Address:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset Finance Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
G. Address for Payments:
The Bank of New York
ABA #000-000-000
For credit to Credit Suisse First Boston CS Remittance/Loan Clearing Account
Account #8900329262
H. Investing Office:
Eleven Madison Avenue
New York, New York
(ii)
II. FALCON PURCHASER GROUP
FALCON ASSET SECURITIZATION CORPORATION
A. Type of Purchaser: CP Conduit
B. Maximum Purchase Amount (applicable only to CP Conduit): $150,000,000
C. Commitment: (n/a to CP Conduit): N/A
D. Purchaser Percentage (n/a to Liquidity Purchaser): 42.857143%
E. Liquidity Percentage (applicable only to Liquidity Purchaser): N/A
F. Notice Address:
c/o Bank One, N.A.
1 Bank Xxx Xxxxx, 0XX-00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset Backed Finance
Telephone: (000) 000-0000
Telefax: (000) 000-0000
G. Address for Payments:
Bank One, N.A.
ABA #000-000-000
For credit to Falcon Asset Securitization
Account #51-14810
H. Investing Office:
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx
(iii)
BANK ONE, N.A.
A. Type of Purchaser: Liquidity Purchaser
B. Maximum Purchase Amount (applicable only to CP Conduit): N/A
C. Commitment: (n/a to CP Conduit): $150,000,000
D. Purchaser Percentage (n/a to Liquidity Purchaser): N/A
E. Liquidity Percentage (applicable only to Liquidity Purchaser): 100%
F. Notice Address:
1 Bank Xxx Xxxxx, 0XX-00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset Backed Finance
Telephone: (000) 000-0000
Telefax: (000) 000-0000
G. Address for Payments:
Bank One, N.A.
ABA #000-000-000
For credit to ___________________________________
Account #_____________
H. Investing Office:
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx
(iv)
III. EAGLEFUNDING PURCHASER GROUP
EAGLEFUNDING CAPITAL CORPORATION
A. Type of Purchaser: CP Conduit
B. Maximum Purchase Amount (applicable only to CP Conduit): $50,000,000
C. Commitment: (n/a to CP Conduit): N/A
D. Purchaser Percentage (n/a to Liquidity Purchaser): 14.285714%
E. Liquidity Percentage (applicable only to Liquidity Purchaser): N/A
F. Notice Address:
c/o BancBoston Xxxxxxxxx Xxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:_________________
Telephone: (617) __________
Telefax: (617) __________
G. Address for Payments:
BankBoston, N.A.
ABA #000-000-000
For credit to __________________________________________
Account #________________
H. Investing Office:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
(v)
BANKBOSTON, N.A.
A. Type of Purchaser: Liquidity Purchaser
B. Maximum Purchase Amount (applicable only to CP Conduit): N/A
C. Commitment: (n/a to CP Conduit): $50,000,000
D. Purchaser Percentage (n/a to Liquidity Purchaser): N/A
E. Liquidity Percentage (applicable only to Liquidity Purchaser): 100%
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:_________________
Telephone: (617) __________
Telefax: (617) __________
G. Address for Payments:
BankBoston, N.A.
ABA #000-000-000
For credit to __________________________________________
Account #________________
H. Investing Office:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
(vi)
