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Exhibit 10(a)(v)
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of December 30, 1997, by and
among CITICORP NORTH AMERICA, INC., as agent (together with its successors and
assigns, the "PROGRAM AGENT") for CORPORATE RECEIVABLES CORPORATION, a
California corporation ("CRC"), and as collateral investor ("COLLATERAL
INVESTOR"), and the banks and financial institutions (the "LIQUIDITY PROVIDERS")
from time to time party to the Certificate Purchase Agreement referred to below
and for any other Certificateholders (as hereinafter defined), THE EL-BEE
RECEIVABLES CORPORATION, a Delaware corporation (the "TRANSFEROR"), THE EL-BEE
CHARGIT CORP., an Ohio corporation ("CHARGIT"), THE XXXXX-XXXXXXX STORES CORP.,
an Ohio corporation ("XXXXX- XXXXXXX"), BANKERS TRUST COMPANY, not in its
individual capacity but solely as trustee (together with its successors and
assigns, the "TRUSTEE") of the Xxxxx-Xxxxxxx Master Trust (the "TRUST"), and
CITICORP USA, INC., in its separate capacity as agent (the "BANK AGENT"), for
the issuer (the "ISSUING BANK") and the financial institutions (the "LENDERS")
party to the Credit Agreement referred to below.
PRELIMINARY STATEMENTS
1. Xxxxx-Xxxxxxx has agreed to sell, transfer and assign to
Chargit, and Chargit has agreed to purchase from Xxxxx-Xxxxxxx, all of the
right, title and interest of Xxxxx-Xxxxxxx in and to the Purchased Receivables
(as hereinafter defined) pursuant to a Purchase Agreement dated as of the date
hereof (as amended, supplemented or otherwise modified, the "FIRST PURCHASE
AGREEMENT"), between Xxxxx-Xxxxxxx and Chargit, and Chargit (together with
Xxxxx-Xxxxxxx, the "ORIGINATORS") has agreed to sell, transfer and assign to the
Transferor, and the Transferor has agreed to purchase from Chargit, all of the
right, title and interest of Chargit in and to the Purchased Receivables,
pursuant to a Purchase Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "SECOND PURCHASE
AGREEMENT", and together with the First Purchase Agreement, the "PURCHASE
AGREEMENTS"), between Chargit and the Transferor.
2. The Transferor, Chargit, as servicer (the "SERVICER"), and
the Trustee are parties to a Pooling and Servicing Agreement dated as of the
date hereof (as amended, supplemented or otherwise modified from time to time,
the "POOLING AND SERVICING AGREEMENT"), pursuant to which the Transferor has
agreed to transfer the Receivables to the Trustee on behalf of the Trust.
3. The Pooling and Servicing Agreement will be supplemented by
the Series 1997-1 Supplement dated as of the date hereof (as amended,
supplemented or otherwise
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modified from time to time, the "SERIES 1997-1 SUPPLEMENT") among the
Transferor, the Servicer and the Trustee.
4. CRC or the Liquidity Providers will purchase the Class A
Certificates (as defined under the Series 1997-1 Supplement) issued under the
Series 1997-1 Supplement, pursuant to a Certificate Purchase Agreement dated as
of the date hereof (as amended, supplemented or otherwise modified from time to
time, the "CERTIFICATE PURCHASE AGREEMENT"), among the Transferor, the Trustee,
CRC, the Liquidity Providers and the Program Agent.
5. Collateral Investor will purchase the Collateral Investor
Certificates (as defined under the Series 1997-1 Supplement) issued under the
Series 1997-1 Supplement, pursuant to a Loan Agreement dated as of the date
hereof (as amended, supplemented or otherwise modified from time to time, the
"COLLATERAL INVESTOR LOAN AGREEMENT"), among the Transferor, the Trustee,
Servicer, Program Agent, and the Collateral Investor.
6. The Purchase Agreements and the Pooling and Servicing
Agreement provide for the filing of UCC (as hereinafter defined) financing
statements in connection with obtaining and perfecting the ownership or security
interests of the parties thereto in certain of the assets and properties
constituting the Receivables.
7. Xxxxx-Xxxxxxx, the Lenders, the Issuing Bank and the Bank
Agent are parties to a Credit Agreement dated as of December 30, 1997 (as
amended, supplemented, modified, restated, replaced or refinanced from time to
time, with the same or a different group of lenders, issuing banks or bank
agents, the "CREDIT AGREEMENT").
8. To secure certain obligations, Xxxxx-Xxxxxxx and Chargit
have granted to the Bank Agent, for the benefit of the Lender Parties (as
hereinafter defined), a security interest in certain collateral, including but
not limited to Receivables (as hereinafter defined) and proceeds thereof,
pursuant to the Security Agreement (as such term is defined in the Credit
Agreement).
9. It is a condition precedent to the making of the Purchase
(as defined in the Certificate Purchase Agreement) under the Certificate
Purchase Agreement and the purchase and sale of Collateral Investor Certificates
under the Collateral Investor Loan Agreement and to the issuance of the
certificates pursuant to the Series 1997-1 Supplement that the parties hereto
enter into this Agreement.
10. The parties hereto have agreed to enter into this
Agreement to set forth provisions regarding the allocation of priorities in, and
the enforcement of remedies with
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respect to, the Purchased Property (as hereinafter defined) and with respect to
the Collateral (as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants contained herein, and for other good and valuable
consideration, receipt of which is hereby acknowledged, it is hereby agreed as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following capitalized terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined). The term "Agreement" shall mean this Intercreditor Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"AMORTIZATION DATE" has the meaning specified in the Series
1997-1 Supplement.
"BANK CLAIM" means all "Obligations" as such term is defined
in the Credit Agreement.
"BANK COLLATERAL" means all property and interests in property
now owned or hereafter acquired by any Originator in or upon which a security
interest, lien or mortgage is granted by any Originator or The Bee-Gee Shoe
Corp., an Ohio corporation, to the Bank Agent under any of the Bank Loan
Documents.
"BANK COLLATERAL DOCUMENTS" means each Bank Loan Document
which grants a security interest, lien or mortgage in any asset of the Borrower,
Chargit or the Transferor.
"BANK LOAN DOCUMENTS" has the meaning specified for the term
"Loan Documents" in the Credit Agreement.
"BORROWER" has the meaning specified in the Credit Agreement.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of Ohio or the
State of New York or is a day on which banking institutions located in either of
such states are closed; PROVIDED, HOWEVER, that when making reference to a
Eurodollar Advance (as defined in the Credit Agreement)
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(including the making, continuing, prepaying or repaying of any Eurodollar
Advance), the term "Business Day" shall also exclude any day in which banks are
not open for dealings in deposits of United States dollars on the London
interbank market.
"CERTIFICATEHOLDERS" has the meaning specified in the Pooling
and Servicing Agreement.
"CLAIM" means the Bank Claim or the Purchaser Claim, as
applicable.
"COLLATERAL" means all Bank Collateral which does not
constitute Purchased Property.
"COLLECTION ACCOUNT" has the meaning specified in the Pooling
and Servicing Agreement.
"COLLECTION ACCOUNT BANK" has the meaning specified in the
Pooling and Servicing Agreement.
"COLLECTIONS" means, with respect to any Purchased Receivable,
all cash collections and other cash proceeds of such Purchased Receivable
excluding, however, (i) such collections and proceeds received by Xxxxx-Xxxxxxx
with respect to the sale of the Purchased Receivables by Xxxxx-Xxxxxxx to
Chargit, (ii) such collections and proceeds received by Chargit with respect to
the sale of the Purchased Receivables by Chargit to the Transferor and (iii) any
Certificate received by the Transferor upon the transfer of Purchased
Receivables to the Trustee on behalf of the Trust and any Supplemental
Certificate (as defined in the Pooling and Servicing Agreement) issued pursuant
to the Pooling and Servicing Agreement.
"COMPANY CLAIM" means all of the indebtedness, obligations and
other liabilities of (i) the Transferor to Chargit and (ii) Chargit to
Xxxxx-Xxxxxxx arising under, or in connection with, the Purchase Agreements,
including, but not limited to, obligations evidenced by any Subordinated Note,
and any costs of collection or enforcement thereof.
"CONCENTRATION ACCOUNT" has the meaning specified in the
Pooling and Servicing Agreement.
"CONCENTRATION ACCOUNT BANK" has the meaning specified in the
Pooling and Servicing Agreement.
"EARLY AMORTIZATION EVENT" has the meaning specified in the
Pooling and Servicing Agreement.
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"ENFORCEMENT" means, collectively or individually, for (i) the
Program Agent on behalf of the Certificateholders or the Trustee to declare an
"Early Amortization Event" under the Purchaser Documents and to cease the
purchase of Receivables under the Pooling and Servicing Agreement or (ii) the
Majority Lenders or the Bank Agent to demand payment in full of or accelerate
the Bank Claim, and to commence the judicial or nonjudicial enforcement of any
of the rights and remedies, under the Bank Loan Documents.
"ENFORCEMENT NOTICE" means a written notice delivered in
accordance with Section 2.05 hereof, which notice shall (i) if delivered by the
Program Agent or the Trustee, state that an Early Amortization Event has
occurred, specify the nature of such event and announce that an Enforcement
Period has commenced and (ii) if delivered by the Bank Agent, state that an
Event of Default has occurred, specify the nature of such event and announce
that an Enforcement Period has commenced.
"ENFORCEMENT PERIOD" means the period of time following the
receipt by either the Bank Agent or the Trustee of an Enforcement Notice
delivered by the other such Person until the earliest of the following: (1) the
Purchaser Claim Termination Date, in the case of an Enforcement Notice delivered
by the Program Agent or the Trustee; (2) the Bank Claim has been paid and
satisfied in full in cash, in the case of an Enforcement Notice delivered by the
Bank Agent; and (3) the parties hereto agree in writing to terminate the
Enforcement Period.
"EVENT OF DEFAULT" has the meaning specified in the Credit
Agreement.
"LENDER PARTIES" means the Lenders and the Issuing Bank.
"MAJORITY LENDERS" has the meaning specified in the Credit
Agreement.
"OBLIGOR" has the meaning specified in the Pooling and
Servicing Agreement.
"PERSON" means an individual, corporation, trust (including a
business trust), joint-stock company, limited liability company, unincorporated
organization, association, partnership, joint venture, governmental authority or
any other entity.
"PURCHASED PROPERTY" means (i) the Purchased Receivables, (ii)
the Collections related to such Purchased Receivables and (iii) each Collection
Account, the Concentration Account, the Excess Funding Account (as defined in
the Pooling and Servicing Agreement) and each other account established pursuant
to the Pooling and Servicing Agreement.
"PURCHASED RECEIVABLES" means now owned or hereafter existing
Receivables sold or purported to be sold, contributed or otherwise transferred
by one or more Originators to Chargit and/or to the Transferor under and
pursuant to the terms of any Purchase
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Agreement other than Receivables arising after the Business Day immediately
following the Business Day on which notice is delivered by the Bank Agent
pursuant to Section 6.17 of the Credit Agreement.
"PURCHASER CLAIM" means all obligations of any Originator (as
Servicer or otherwise) or of the Transferor to, or which have been assigned to
or entered into in favor of, the Trustee, the Program Agent, or any Holder
arising under any Purchaser Document and of any Obligor arising under any
Purchased Receivable, including, but not limited to, all sums or increases now
or hereafter advanced or made to or for the benefit of the Transferor
thereunder, any interest thereon, any repayment obligations, indemnity payments,
fees or expenses due thereunder, and any costs of collection or enforcement.
"PURCHASER DOCUMENTS" means the Purchase Agreements, each
Subordinated Note, the Pooling and Servicing Agreement, the Series 1997-1
Supplement, the Certificate Purchase Agreement, the Collateral Investor Loan
Agreement, the Fee Letter (as defined in the Pooling and Servicing Agreement)
and any other agreements, instruments or documents (i) executed by an Originator
and delivered to the Transferor or (ii) executed by the Transferor and delivered
to the Trustee or Program Agent.
"PURCHASER CLAIM TERMINATION DATE" any date on which (i) the
Purchaser Claim has been paid and satisfied in full in cash or (ii) the Trust
shall have been completely terminated, and the Trustee shall have distributed
all Trust Assets, in accordance with the Pooling and Servicing Agreement.
"RECEIVABLE" has the meaning specified in the Pooling and
Servicing Agreement.
"RECORDS" means all contracts and other documents, books,
records and other information (including, without limitation, computer programs,
tapes, disks, punch cards, data processing software and related property and
rights) maintained with respect to the Receivables and the related Obligors.
"RETURNED GOODS" means all right, title and interest of any
Originator or the Transferor, as applicable, in and to returned, repossessed or
foreclosed goods and/or merchandise the sale of which gave rise to a Purchased
Receivable.
"RETURNED GOODS LIEN" has the meaning specified in Section
2.01(a).
"SERIES" has the meaning specified in the Pooling and
Servicing Agreement.
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"STORE ACCOUNT" has the meaning specified in the Pooling and
Servicing Agreement).
"SUBORDINATED NOTE" has the meaning specified in the Purchase
Agreements.
"TRUST ASSETS" has the meaning specified in the Pooling and
Servicing Agreement.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the applicable jurisdiction.
"UNSOLD RECEIVABLES" means any Receivables other than
Purchased Receivables.
SECTION 1.02. REFERENCES TO TERMS DEFINED IN THE PURCHASER
DOCUMENTS AND THE BANK LOAN DOCUMENTS. Whenever in Section 1.01 a term is
defined by reference to the meaning specified in any of the Purchaser Documents
or Bank Loan Documents, then, unless otherwise specified herein, such term shall
have the meaning specified in such Purchaser Documents or Bank Loan Documents,
as the case may be, as in existence on the date hereof, without giving effect to
any amendments of such term as may hereafter be agreed to by the parties to such
documents, unless such amendments have been consented to in writing by all of
the parties hereto.
ARTICLE II
INTERCREDITOR PROVISIONS
SECTION 2.01. PRIORITIES WITH RESPECT TO PURCHASED PROPERTY.
(a) Notwithstanding any provision of the UCC, any applicable law or decision or
any of the Bank Loan Documents or Purchaser Documents, the Bank Agent hereby
agrees that, upon the sale or other transfer of an interest in each Purchased
Receivable by Xxxxx-Xxxxxxx to Chargit, and by Chargit to the Transferor, any
lien, claim, encumbrance, security interest or other interest acquired by the
Bank Agent or any Lender Party in such Purchased Receivable and proceeds thereof
(other than the proceeds of such sale or transfer to the Transferor) and any
other Trust Assets shall automatically and without further action cease and be
released and the Bank Agent and the Lender Parties shall have no lien, claim,
encumbrance, security interest or other interest or right therein; PROVIDED,
HOWEVER, that nothing in this Section 2.01 shall be deemed to constitute a
release by the Bank Agent of: (A) its lien on and security interest in the
proceeds received by an Originator from the Transferor or from Chargit for the
sale or other transfer of the Purchased Receivables (including, without
limitation, cash payments made by the Transferor and any Subordinated Note
issued by the Transferor in favor of, or endorsed to,
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an Originator, each in connection with such sales); (B) any lien on, security
interest in or assignment of the Company Claim; (C) any lien, claim,
encumbrance, security interest or other interest or right the Bank Agent has in
any Unsold Receivables and the proceeds thereof, including, without limitation,
Collections of Unsold Receivables which are at any time deposited in the
Collection Accounts or the Concentration Account; and (D) any lien, claim,
encumbrance, security interest or other interest or right the Bank Agent may
have in any Subordinated Note or in any capital stock issued by the Transferor;
and (E) any lien, claim, encumbrance, security interest or other interest or
right (collectively, a "RETURNED GOODS LIEN") the Bank Agent may have in any
interest of an Originator in Returned Goods. The security interest of the Bank
Agent in Purchased Receivables reassigned by the Transferor to Chargit, and from
Chargit to Xxxxx-Xxxxxxx, pursuant to Section 2.04(e) of the Pooling and
Servicing Agreement shall reattach upon such transfer.
(b) All interests of the Trustee in Returned Goods under the
Purchaser Documents shall in all respects be junior and subordinate to any
Returned Goods Lien in such Returned Goods, EXCEPT that (i) during any period in
which an Early Amortization Event shall have occurred and be continuing, such
Returned Goods Lien shall be junior and subordinate to all interests of the
Trustee in any Returned Goods under the Purchaser Documents which have not been
commingled with Collateral and (ii) the Trustee shall have no interest in any
Returned Good the sale of which gave rise to a Receivable which shall have been
paid in full. As among the Trustee and the Bank Agent, all proceeds of any
Returned Goods shall be distributed FIRST to the party whose position is
designated as senior in the preceding sentence and SECOND to the party whose
position is designated as junior in the preceding sentence.
(c) The Bank Agent hereby acknowledges that each Subordinated
Note is subordinated to the Senior Debt as defined in such Subordinated Note.
SECTION 2.02. RESPECTIVE INTERESTS IN PURCHASED PROPERTY AND
COLLATERAL. Except for all rights of access to and use of Records granted to the
Trustee, the Program Agent and the other Beneficiaries pursuant to the Purchaser
Documents, each of the Trustee (on behalf of the Trust) and the Program Agent
agrees that it does not have and shall not have any security interest in, lien
upon or interest in the Collateral. Except as otherwise specified in Section
2.01 above, the Bank Agent agrees that it does not have and shall not have any
security interest in, lien upon or interest in the Purchased Property other than
an interest in the Store Accounts for the benefit of itself and the Trustee.
SECTION 2.03. DISTRIBUTION OF PROCEEDS. At all times, all
proceeds of Collateral and Purchased Property (including proceeds received in
the Collection Accounts that are Store Accounts) shall be distributed in
accordance with the following procedure:
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(a) Except as otherwise provided in Section 2.04 or Section
2.01(b), (i) all Collections and other proceeds of the Collateral shall
be paid or delivered to the Bank Agent for application on the Bank
Claim in accordance with the Bank Documents and (ii) any remaining
proceeds after the Bank Claim has been paid and satisfied in full in
cash shall be paid to the Borrower or as otherwise required by
applicable law.
(b) Except as otherwise provided in Section 2.04 or Section
2.01(b), (i) all Collections and other proceeds of the Purchased
Property shall be paid or delivered to the Trustee on behalf of the
Trust for application in accordance with the terms of the Supplements
(as defined in the Pooling and Servicing Agreement) against the
Purchaser Claim until the Purchaser Claim Termination Date, and (ii)
any remaining Collections and proceeds shall be paid to the Transferor
in accordance with the terms of the Supplements or as otherwise
required by applicable law, PROVIDED, HOWEVER, that the Transferor and
each Originator hereby agrees that all such remaining Collections and
proceeds which, pursuant to the Purchaser Documents, are to be paid by
the Transferor or by Chargit to an Originator, for application against
the Company Claim shall be paid directly on behalf of such Originator
to the Bank Agent for application against the Bank Claim before being
paid to any Originator or the Transferor.
SECTION 2.04. COLLECTION ACCOUNTS. (a) The Trustee (on behalf
of the Trust) and the Program Agent hereby acknowledge (i) that Xxxxx-Xxxxxxx
will deliver to the Bank Agent each Subordinated Note issued by the Transferor
and transferred to Xxxxx-Xxxxxxx by Chargit, as security for the Bank Claim,
(ii) that the Bank Agent shall be entitled to Collections of Unsold Receivables
which may be deposited in the Collection Accounts or the Concentration Account
and (iii) the interest of the Bank Agent and the Lender Parties in the Store
Accounts, which are also held by the Bank Agent on behalf of the Trustee. The
Servicer shall promptly notify the Trustee and the Bank Agent of any Collections
of Unsold Receivables which are deposited in any Collection Account or the
Concentration Account and shall promptly deliver such funds to the Bank Agent.
The Trustee (on behalf of the Trust) agrees, upon the Bank Agent's written
request, to notify (in such form as is provided by the Bank Agent) the
Collection Account Banks and Concentration Account Bank of the Bank Agent's
interest in and to such Collection Accounts or the Concentration Account, as
applicable, in order to perfect the Bank Agent's interest in such Collection
Accounts or the Concentration Account. The Bank Agent agrees upon the Trustee's
written request, to notify (in such form as is provided by the Trustee) the
Collection Account Banks which hold Store Accounts of the Trustee's interest in
and to such Store Accounts in order to perfect the Trustee's interest in such
Store Accounts.
(b) For purposes of determining whether specific Collections
have been received on account of Purchased Property or on account of Unsold
Receivables, the parties hereto agree as follows:
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(i) All payments made by an Obligor which is obligated to make
payments on Purchased Receivables but is not obligated to make any
payments on Unsold Receivables shall be conclusively presumed to be
payments on account of Purchased Receivables, and all payments made by
an Obligor which is obligated to make payments on Unsold Receivables
but is not obligated to make any payments on Purchased Receivables
shall be conclusively presumed to be payments on account of Unsold
Receivables.
(ii) All payments made by an Obligor which is obligated to
make payments with respect to both Purchased Receivables and Unsold
Receivables shall be applied against the specific Receivables, if any,
which are designated by such Obligor by reference to the applicable
invoice as the Receivables with respect to which such payments should
be applied. In the absence of such designation after reasonable efforts
by the Originators to obtain such designation, such payments shall be
applied against the oldest outstanding Receivables or portion thereof
owed by such Obligor to the extent such oldest Receivable or portion
thereof is not in dispute.
(c) Subject to the terms and conditions of this Section
2.04(c), the Trustee agrees that it shall transfer its ownership and control
over the Collection Accounts (to the extent not previously transferred as in the
case of the Store Accounts) and the Concentration Account to the Bank Agent upon
receipt by the Trustee of any of (i) a certificate of the Program Agent to the
effect that the Purchaser Claim Termination Date has occurred or (ii) a
certificate of the Program Agent to the effect that, with respect to all Series,
the Amortization Dates shall have occurred or a Trust Early Amortization Event
shall have occurred and be continuing, that a Responsible Officer of the Trustee
has been notified in writing of such occurrence, and that all outstanding
Purchased Receivables have been paid in full in cash or (iii) written
instructions (whether embodied in one or more documents) to the Trustee to make
such transfer signed by each of the Program Agent, the Transferor, the
Originators and the Bank Agent. Any such transfer shall be without
representation, recourse or warranty of any kind on the part of the Trustee.
Notwithstanding any such transfer, all Collections and other proceeds
subsequently deposited into the Collection Accounts or the Concentration Account
on account of the Purchased Property shall be delivered to the Trustee as
provided in Section 2.04(b) above, unless otherwise limited by the Bank Agent
after the Purchaser Claim Termination Date. The Bank Agent agrees that, at the
time of such transfer, the Bank Agent shall take such steps as may be reasonably
requested by the Trustee, the Transferor or the Program Agent (including,
without limitation, notification to the Collection Account Banks and
Concentration Account Bank of the Trustee's continuing interest on behalf of the
Trust, if any, in the Collection Accounts and the Concentration Account) to
maintain perfection of the Trustee's interest on behalf of the Trust in such
Collection Accounts and the Concentration Account.
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(d) In order to effect more fully the provisions of this
Agreement, each of the Trustee and the Bank Agent hereby agrees that, from and
after an Early Amortization Event: (i) during any period that the Trustee has
control over the Collection Accounts, the Trustee shall provide to the Bank
Agent upon prior written request a copy of the latest monthly account statement
relating to the Collection Accounts during the Trustee's administration; (ii) in
the event that the Bank Agent has control over the Collection Accounts pursuant
to clause (iii) of Section 2.04(c) above, the Program Agent shall be entitled to
review the Bank Agent's records of receipts of Collections and application of
proceeds therefrom; (iii) in the event that the Bank Agent shall foreclose or
otherwise dispose of any commingled inventory described in Section 2.01(b), the
Program Agent shall be allowed to have a representative observe such foreclosure
or disposition and the Bank Agent's application of proceeds received therefrom;
and (iv) neither the Bank Agent, the Trustee or the Program Agent shall, before
the Purchaser Claim Termination Date, send any notices to any obligor of any
Receivable directing such obligor to remit Collections of any Receivables other
than to the Collection Accounts.
(e) The Trustee and Program Agent each further agree that they
will not cause the Servicer to be replaced by a successor servicer unless (i) a
"Servicer Default" has occurred under and as defined in the Pooling and
Servicing Agreement; (ii) such successor servicer is a "Successor Servicer"
under and as defined in the Pooling and Servicing Agreement; and (iii) such
successor servicer has acknowledged the terms of this Agreement and agreed to be
bound hereby.
SECTION 2.05. ENFORCEMENT ACTIONS. Each of the Bank Agent, the
Trustee, and the Program Agent agrees to use reasonable efforts to give an
Enforcement Notice to each other such Person prior to commencement of
Enforcement and further agrees that during the period, if any, between the
giving of such Enforcement Notice and the commencement of Enforcement
thereunder, each party receiving such notice shall have the right to the extent
within its power (but not the obligation) to cure the Event of Default or Early
Amortization Event which has occurred under the Bank Loan Documents or the
Purchaser Documents, respectively, and to which such Enforcement Notice relates.
Subject to the foregoing, the parties hereto agree that during an Enforcement
Period:
(a) Subject to any applicable restrictions in the Purchaser
Documents, the Trustee may take any action to liquidate the Purchased
Property or to foreclose or realize upon or enforce any of the rights
of the Trust with respect to the Purchased Property without the prior
written consent of any Lender Party or any other party hereto;
PROVIDED, HOWEVER, that with respect to Returned Goods the Trustee
shall not take any action to foreclose or realize upon or to enforce
any rights it may have with respect to any Collateral or any Purchased
Property constituting Returned Goods in which the Trustee then has an
interest junior and subordinate to a Returned Goods Lien
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without the prior written consent of the Bank Agent, unless the Bank
Claim shall have been first paid and satisfied in full in cash, and the
Trustee shall apply the proceeds of such Returned Goods as provided in
Section 2.01(b) above.
(b) Subject to any applicable restrictions in the Bank Loan
Documents, the Bank Agent may, at its option and without the prior
written consent of the other parties hereto, take any action to
accelerate payment of the Bank Claim and to foreclose or realize upon
or enforce any of its rights with respect to (A) the Collateral and (B)
any Purchased Property constituting Returned Goods; PROVIDED, HOWEVER,
that the Bank Agent shall not otherwise take any action to foreclose or
realize upon or to enforce any rights it may have with respect to any
of the Purchased Property constituting Returned Goods in which a
Returned Goods Lien is then junior and subordinate to an interest of
the Trustee in such Returned Goods (to the extent that such interest
has been so identified to the Bank Agent with sufficient specificity so
as to enable the Trustee to segregate such property) without the
Program Agent's prior written consent (unless the Purchaser Claim
Termination Date shall have occurred) and the Bank Agent shall apply
proceeds of any Purchased Property consisting of Returned Goods as
provided in Section 2.01(b) above.
SECTION 2.06. ACCESS TO AND USE OF COLLATERAL. The Trustee,
the Program Agent and the Bank Agent hereby agree that, notwithstanding the
priorities set forth in this Agreement, the Trustee and the Bank Agent shall
have the following rights of access to and use of the Purchased Property and the
Collateral, respectively:
(a) Subject to any applicable restrictions in the Purchaser
Documents, each of the Trustee and the Program Agent may enter one or
more premises of any Originator or the Transferor, whether leased or
owned, at any time during reasonable business hours, without force or
process of law and without obligation to pay rent or compensation to
any Originator, the Transferor or the Bank Agent, whether before,
during or after an Enforcement Period, and may have access to and use
of all Records located thereon and may have access to and use of any
other property to which such access and use are granted under the
Purchaser Documents, in each case provided that such use is for any
purpose permitted under the Purchaser Documents or for the purposes of
enforcing the rights of the Trust with respect to the Purchased
Property.
(b) Subject to any applicable restrictions in the Bank Loan
Documents and any Subordinated Note, the Bank Agent may enter one or
more premises of any Originator or the Transferor, whether leased or
owned, at any time during reasonable business hours, without force or
process of law and without obligation to pay rent or compensation to
any Originator, the Transferor or the Trustee, whether before, during
or after an Enforcement Period, and may have access to and use of all
Records located
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thereon, provided that such use is for any purpose permitted under the
Bank Loan Documents or for the purposes of enforcing the Bank Agent's
rights (i) with respect to the Collateral and (ii) subject to the
limits provided in Section 2.01 above, with respect to the Purchased
Property.
SECTION 2.07. NOTICE OF DEFAULTS. The Bank Agent agrees to use
reasonable efforts to give to the Trustee and the Program Agent copies of any
notice sent to the Borrower with respect to the occurrence or existence of an
Event of Default which continues for a period of ten (10) consecutive Business
Days without there being in effect a waiver thereof or an agreement forbearing
from the exercise of remedies duly executed by the parties required to do so
under the applicable Bank Loan Documents. The Trustee agrees to use reasonable
efforts to give to the Bank Agent copies of any notice sent to any Originator or
the Transferor with respect to the occurrence or existence of an Early
Amortization Event which continues for any period of ten (10) consecutive
Business Days without there being in effect a waiver thereof or an agreement
forbearing from the exercise of remedies duly executed by the parties required
to do so under the applicable Purchaser Documents. Notwithstanding the
foregoing, any failure by any party hereto to give such notice shall not create
a cause of action against any party failing to give such notice or create any
claim or right on behalf of any third party. In each of the above cases, the
party receiving such notice shall have the right to the extent within its power
(but not the obligation) to cure the Event of Default or Early Amortization
Event, as the case may be, which gave rise to the sending of such notice.
SECTION 2.08. AGENCY FOR PERFECTION. The Trustee and the Bank
Agent hereby appoint each other as agent for purposes of perfecting by
possession their respective security interests and ownership interests and liens
on the Collateral (which may include any Subordinated Note) and Purchased
Property. In the event that the Trustee, to the actual knowledge of a
Responsible Officer thereof, obtains possession of any of the Collateral, the
Trustee shall notify the Bank Agent of such fact, shall hold such Collateral in
trust and, subject to Section 2.01(b), shall deliver such Collateral to the Bank
Agent upon request. In the event that the Bank Agent, to the actual knowledge of
a Responsible Officer thereof, obtains possession of any of the Purchased
Property, the Bank Agent shall notify in writing the Trustee and the Program
Agent of such fact, shall hold such Purchased Property in trust and, subject to
Section 2.01(b), shall deliver such Purchased Property to the Trustee upon
request.
SECTION 2.09. UCC NOTICES. In the event that any party hereto
shall be required by the UCC or any other applicable law to give notice to the
other of intended disposition of Purchased Property or Collateral, respectively,
such notice shall be given in accordance with Section 3.01 hereof and ten (10)
days' notice shall be deemed to be commercially reasonable.
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SECTION 2.10. INDEPENDENT CREDIT INVESTIGATIONS. None of the
Trustee, the Program Agent or the Bank Agent or any of their respective
directors, officers, agents or employees shall be responsible to the other or to
any other Person for the solvency, financial condition or ability of the
Originators or the Transferor to repay the Purchaser Claim or the Bank Claim, or
for the worth of the Purchased Property or the Collateral, or for statements of
either the Originators or the Transferor, oral or written, or for the validity,
sufficiency or enforceability of the Purchaser Claim, the Bank Claim, the
Purchaser Documents, the Bank Loan Documents, the Trustee's interest on behalf
of the Trust in the Purchased Property or the Bank Agent's interest in the
Collateral or any other collateral. The Bank Agent and the Program Agent have
entered into their respective agreements with the Originators or the Transferor,
as applicable, based upon their own independent investigations. None of the Bank
Agent, the Program Agent or the Trustee makes any warranty or representation to
the other nor does it rely upon any representation of the other with respect to
matters identified or referred to in this Section 2.10.
SECTION 2.11. LIMITATION ON LIABILITY OF PARTIES TO EACH
OTHER. Except as provided in this Agreement, the Bank Agent shall have no
liability to the Trustee or the Program Agent, and the Trustee and the Program
Agent shall have no liability to the Bank Agent, except in each case for
liability arising from the gross negligence or willful misconduct of such party
or its representatives. The Bank Agent shall have no liability to any other
party hereto and the Trustee and the Program Agent shall have no liability to
any other party hereto in each case for consequential or exemplary damages.
SECTION 2.12. MARSHALLING OF ASSETS. Nothing in this Agreement
will be deemed to require either the Trustee or the Bank Agent (i) to proceed
against certain property securing any or all of the Bank Claim or the Purchaser
Claim prior to proceeding against other property securing any such Claim or (ii)
to marshal the Collateral or the Purchased Property (as applicable) upon the
enforcement of the Bank Agent's or the Trustee's rights or remedies under the
Bank Loan Documents or Purchaser Documents, as applicable.
SECTION 2.13. RELATIVE RIGHTS OF CERTIFICATEHOLDERS AND LENDER
PARTIES AS AMONG THEMSELVES. The relative rights of the Certificateholders, each
as against the other, with respect to the exercise of the rights and the receipt
of the benefits granted by the Trustee hereunder shall be determined by mutual
agreement among such parties in accordance with the terms of the Purchaser
Documents. Each of the parties hereto (other than the Trustee) shall be entitled
to rely on the power and authority of the Trustee to act on behalf of all of the
Certificateholders. The relative rights of the Lender Parties, each as against
the other, with respect to the exercise of the rights and the receipt of the
benefits granted by the Bank Agent shall be determined by mutual agreement among
the parties in accordance with the terms of the Loan Documents. Each of the
parties hereto (other than the Bank Agent) shall be entitled to
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rely conclusively on the power and authority of the Bank Agent to act on behalf
of all of the Lender Parties.
SECTION 2.14. EFFECT UPON BANK LOAN DOCUMENTS AND PURCHASER
DOCUMENTS. By executing this Agreement, the Originators and the Transferor agree
to be bound by the provisions hereof (i) as they relate to the relative rights
of the Bank Agent and the Trustee on behalf of the Trust with respect to the
property of the Originators and (ii) as they relate to the relative rights of
Chargit and the Trustee on behalf of the Trust as creditors of the Transferor.
Each of the Originators and the Transferor acknowledge that the provisions of
this Agreement shall not give the Originators or the Transferor any substantive
rights as against any other Person and that nothing in this Agreement shall
amend, modify, change or supersede the terms of (x) the Bank Loan Documents as
between the Borrower, Chargit, the Bank Agent and the Lender Parties or (y) the
Purchaser Documents as among the Originators, the Transferor, the Trustee, the
Certificateholders, the Liquidity Providers and the Program Agent. The Bank
Agent, individually and on behalf of the Issuing Banks and the Lenders, hereby
confirms that the Purchaser Documents in existence as of the date hereof have
been furnished to it, the Issuing Banks and the Lenders and that the Bank Loan
Documents expressly permit the transactions contemplated thereby and hereby
consents to the execution, delivery and performance by each Originator and the
Transferor of such Purchaser Documents. Notwithstanding the foregoing, the Bank
Agent, on the one hand, and the Trustee and the Program Agent, on the other
hand, agree that, as between themselves, to the extent the terms and provisions
of the Bank Loan Documents or the Purchaser Documents are inconsistent with the
terms and provisions of this Agreement, the terms and provisions of this
Agreement shall control.
SECTION 2.15. ACCOUNTINGS. To the extent not provided by the
Originators, (a) the Bank Agent agrees to render accounts of the Bank Claim to
the Program Agent upon request, including but not limited to giving effect to
the application of proceeds of any collateral as hereinbefore provided and (b)
the Program Agent agrees to render statements to the Bank Agent upon request,
which statements shall identify in reasonable detail the Purchased Receivables
and shall render an account of the Purchaser Claim, giving effect to the
application of proceeds of Purchased Property as hereinbefore provided.
SECTION 2.16. FURTHER ASSURANCES. Each of the parties hereto
agrees to take such actions as may be reasonably requested by any other party,
whether before, during or after an Enforcement Period, in order to effect the
rules of distribution and allocation set forth above in this Article II.
SECTION 2.17. SUBORDINATED CERTIFICATES. Until the Bank Claim
has been paid in full and satisfied in full in cash, the Transferor and the
Originators shall not authorize or permit the Trust to issue any Certificate (as
defined in the Pooling and Servicing
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Agreement) to any Person other than the Transferor unless either (a) such
Certificate is issued under a Supplement (as defined in the Pooling and
Servicing Agreement) which does not subordinate such Certificate in any respect
to any other Investor Certificate (as defined in the Pooling and Servicing
Agreement) then outstanding or (b) the Bank Agent has consented to such
issuance.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. NOTICES. 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
below 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, two Business Days
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. Notices and communications sent hereunder on a
day that is not a Business Day shall be deemed to have been sent on the
following Business Day.
If to the Program Agent:
Citicorp North America, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Confirmation No.: 000-000-0000
Attention: Xxxxxxx Arroup
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with a copy to:
Citicorp North America, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Confirmation No.: 000-000-0000
Attention: Xxxxx Xxxxx
If to the Transferor:
0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
Facsimile No.: 000-000-0000
Confirmation No.: 000-000-0000
Attention: President
If to Xxxxx-Xxxxxxx:
0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
Facsimile No.: 000-000-0000
Confirmation No.: 000-000-0000
Attention: Sr. Vice President and Treasurer
If to Chargit:
0000 Xx-Xxx Xxxx,
Xxxxxx, Xxxx 00000
Facsimile No.: 000-000-0000
Confirmation No.: 000-000-0000
Attention: President
If to the Trustee:
Bankers Trust Company
Four Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
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Confirmation No.: 212-250-6137
Attention: Structured Finance Team
If to the Bank Agent:
Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Except as otherwise expressly required by this Agreement, no notice shall be
required to be given to any Lender Party under any Bank Loan Document, other
than to the Bank Agent.
SECTION 3.02. AGREEMENT ABSOLUTE. Each of the Program Agent
and the Trustee shall be deemed to have entered into the Purchaser Documents in
express reliance upon this Agreement. The Bank Agent and the Lender Parties
shall be deemed to have entered into the Bank Loan Documents in express reliance
upon this Agreement. This Agreement shall be and remain absolute and
unconditional under any and all circumstances, and no acts or omissions on the
part of any other party to this Agreement shall affect or impair the agreement
of any party to this Agreement, unless otherwise agreed to in writing by all of
the parties hereto. This Agreement shall be applicable both before and after the
filing of any petition by or against any Originator or the Transferor under the
Bankruptcy Code and all references herein to any Originator or the Transferor
shall be deemed to apply to a debtor-in-possession or trustee for such party and
all allocations of payments among the parties hereto shall, subject to any court
order to the contrary, continue to be made after the filing of such petition on
the same basis that the payments were to be applied prior to the date of the
petition.
SECTION 3.03. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns. The successors and assigns for the
Originators and the Transferor shall include a debtor-in-possession or trustee
of or for such party. The successors and assigns for the Bank Agent, the Trustee
or the Program Agent, as the case may be, shall include any successor Bank
Agent, Trustee or Program Agent, as the case may be, appointed under the terms
of the Bank Loan Documents or the Purchaser Documents, as applicable. Each of
the Bank Agent, the Trustee and the Program Agent, as the case may be, agrees
not to transfer any interest it may have in the Bank Loan Documents or the
Purchaser Documents, as the case may be, unless such transferee has been
notified of the existence of this Agreement and has agreed to be bound hereby.
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SECTION 3.04. THIRD-PARTY BENEFICIARIES. The terms and
provisions of this Agreement shall be for the sole benefit of the parties
hereto, the Certificateholders, the Liquidity Providers and the Lender Parties
and their respective successors and assigns and no other Person shall have any
right, benefit or priority by reason of this Agreement.
SECTION 3.05. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by all the parties hereto, and any such amendment
or waiver shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 3.06. SECTION TITLES. The article and section headings
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
SECTION 3.07. SEVERABILITY. Any provision of this Agreement
that is 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 or thereof
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 3.08. EXECUTION IN COUNTERPARTS. This Agreement 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 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.
SECTION 3.09. LIMITATION OF LIABILITY. It is expressly
understood and agreed by the parties hereto that (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) any 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, and (c)
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 such
breach or failure resulted from the gross negligence, bad faith or willful
misconduct of the Trustee.
SECTION 3.10 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.
SECTION 3.11. 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
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or proceeding arising out of or relating to this Agreement or any of the Bank
Loan Documents or Purchaser 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 or any of the Bank Loan Documents or Purchaser Documents shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any Bank Loan Documents or Purchaser Documents to
which it is a party 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 Bank Loan Documents or Purchaser 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 3.12. 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.
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SECTION 3.13. 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 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 or any other relationship existing in
connection with this Agreement, and agrees that any such action or proceeding
shall be tried before a court and not before a jury.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CITICORP NORTH AMERICA, INC., as
Program Agent and as Collateral Investor
By:
--------------------------------------
Name:
Title:
THE EL-BEE RECEIVABLES
CORPORATION, as Transferor
By:
-------------------------------------
Name:
Title:
THE EL-BEE CHARGIT CORP.,
as Originator and as Servicer
By:
-------------------------------------
Name:
Title:
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THE XXXXX-XXXXXXX STORES CORP.,
as Borrower and as Originator
By:
--------------------------------------
Name:
Title:
XXXXX-XXXXXXX MASTER TRUST
BY: BANKERS TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:
-------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Bank Agent
By:
-------------------------------------
Name:
Title:
