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EXECUTION COPY
10(ii)
AMENDMENT NO. 1 TO THE
SERIES 1997-1 CERTIFICATE
PURCHASE AGREEMENT
AMENDMENT NO. 1 TO THE SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT,
dated as of November 25, 1998 among THE EL-BEE RECEIVABLES CORPORATION, a
Delaware corporation, as Seller (the "SELLER"), CORPORATE RECEIVABLES
CORPORATION, a California corporation, as Purchaser (the "PURCHASER"), the
financial institutions listed on the signature pages hereof, as Liquidity
Providers (the "LIQUIDITY PROVIDERS"), CITICORP NORTH AMERICA, INC., a Delaware
corporation, as Program Agent (the "PROGRAM AGENT"), and BANKERS TRUST COMPANY,
a New York banking corporation, as Trustee (the "TRUSTEE").
PRELIMINARY STATEMENTS:
(1) The Seller, the Purchaser, the Liquidity Providers, the Program
Agent and the Trustee have entered into the Series 1997-1 Certificate Purchase
Agreement dated December 30, 1997 (as such Certificate Purchase Agreement has
been amended, supplemented or otherwise modified through the date thereof, the
"CERTIFICATE PURCHASE AGREEMENT"; all capitalized terms not otherwise defined
herein are used herein as defined in the Certificate Purchase Agreement).
(2) Simultaneously herewith, the Seller and the Trustee (A) have
entered into an Amendment No. 1 to the Xxxxx-Xxxxxxx Master Trust Series 1997-1
Supplement dated as of the date hereof, substantially in the form of Exhibit A
attached hereto (hereinafter referred to as the "AMENDMENT TO THE SUPPLEMENT"),
and (B) have entered into a Waiver to the Pooling and Servicing Agreement dated
as of the date hereof, substantially in the form of Exhibit B attached hereto
(hereinafter referred to as the "WAIVER TO POOLING AND SERVICING AGREEMENT").
(3) The Seller has requested that the Series 1997-1 Class A Purchase
Limit under the Certificate Purchase Agreement be increased.
(4) The parties hereto have agreed to so increase the Series 1997-1
Class A Purchase Limit on the terms and conditions as set forth herein.
SECTION 1. AMENDMENTS TO THE CERTIFICATE PURCHASE AGREEMENT. The
Certificate Purchase Agreement is, effective as of the date hereof and subject
to the satisfaction of the conditions precedent set forth in Section 2 hereof
hereby amended as follows:
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(a) The definition of "ELIGIBLE ASSIGNEE" in Section 1.01 thereof
is hereby deleted in its entirety and replaced by the following
definition:
"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 such laws), that is engaged in
making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business, (i) whose senior long-term
unsecured debt obligations are rated at least (A) A- or better by
Standard & Poor's, and (B) A3 or better by Xxxxx'x, (ii) which is
subject to regulation regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b) and (iii) which
has a combined capital and surplus of at least $500,000,000, or
(b) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or
other entity), that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its
business; PROVIDED that any such depository institution, finance
company, insurance company, financial institution or fund that is
investing the assets of (i) an "employee benefit plan" within the
meaning of Section 3(3) or ERISA, (ii) a "plan" within the meaning
of Section 4975 of the Code or (iii) any entity that is deemed to
hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of any such employee benefit plan or plan in acquiring
any Investor Certificate or any interest therein shall not, in any
such case, be an "Eligible Assignee".
(b) The definition of "INITIAL TERM" in Section 1.01 thereof is
hereby deleted in its entirety and replaced by the following
definition:
"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 Initial Term
Termination Date."
(c) Section 1.01 thereof is hereby amended by inserting therein,
in the appropriate alphabetical order, the following definition:
"INITIAL TERM TERMINATION DATE" means the later to occur of
(x) November 25, 1998, and (y) the date on which the conditions of
effectiveness set forth in Section 2 of that certain Amendment No.
1 to the Series 1997-1 Certificate Purchase Agreement, dated as of
November 25, 1998, among the Seller, the Purchaser, the Liquidity
Provider, the Program Agent and the Trustee shall have been either
fulfilled or waived, PROVIDED, HOWEVER, that the Initial Term will
not extend beyond December 28, 1998.
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(d) The definition of "SERIES 1997-1 CLASS A PURCHASE LIMIT" in
Section 1.01 thereof is hereby deleted in its entirety and replaced by
the following definition:
"SERIES 1997-1 CLASS A PURCHASE LIMIT" means, as of any date,
$167,000,000 (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.
(e) The first sentence of Section 2.07 thereof is hereby deleted
in its entirety and replaced by the following sentence:
"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 Initial Term
Termination Date."
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall
become effective as of the date first above written when, and only when, (A) the
Program Agent shall have received counterparts of this Amendment executed by all
the parties hereto; (B) each of the conditions of effectiveness set forth in
Section 2 of the Amendment to the Supplement shall have either been fulfilled or
waived in accordance with the terms thereof; (C) each of the conditions of
effectiveness set forth in Section 3 of the Waiver to Pooling and Servicing
Agreement shall have either been fulfilled or waived in accordance with the
terms thereof; (D) each of the conditions precedent set forth in Sections 4.02
and 4.03 of the Certificate Purchase Agreement with respect to an Increase (if
an Increase shall occur on such date) shall have either been fulfilled or waived
in accordance with the terms thereof; and (E) the Program Agent and the Trustee
shall have received all of the following documents, each dated as of the date
hereof (unless otherwise specified by the Program Agent), in form and substance
satisfactory to the Program Agent (unless otherwise specified) and in sufficient
copies as indicated by the Program Agent.
(a) Counterparts of the Consent appended hereto (hereinafter
referred to as the "CONSENT", and together with this Amendment, the
Amendment to the Supplement and the Waiver to Pooling and Servicing
Agreement, hereinafter collectively referred to as the "AMENDMENT
DOCUMENTS" and, individually, as an "AMENDMENT DOCUMENT") executed by
the Parent.
(b) A consent by CITICORP USA, INC., as Bank Agent for the
lenders party to the Credit Agreement, in form and substance
satisfactory to the Program Agent, with respect to the transactions
contemplated by the Amendment Documents.
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(c) Certified copies of the resolutions of the Board of Directors
of the Parent, the Servicer and the Seller approving each Amendment
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
Amendment Document.
(d) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, dated reasonably near the date
hereof, certifying that each of the Parent, the Servicer and the Seller
is in good standing under the laws of the jurisdiction of its
incorporation.
(e) A certificate of the Parent, the Servicer and the Seller,
signed on behalf of the Parent, the Servicer and Seller, respectively,
by its President or a Vice President, dated as of the date hereof (the
statements made in which certificate shall be true on and as of the
date hereof), certifying as to (A) the absence of any amendments to its
charter since the last date of delivery thereof pursuant to the
Transaction Documents, (B) a true and correct copy of its bylaws (and
all amendments thereto) as in effect on the date hereof, (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 date hereof and (E) the absence of any
event occurring and continuing, or resulting from the transactions
contemplated by the Amendment Documents,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).
(f) A certificate of the Secretary or an Assistant Secretary (or,
in the case of the Trustee, an Assistant Treasurer) of the Parent, the
Servicer, the Seller and the Trustee certifying the names and true
signatures of the officers of the Parent, the Servicer, the Seller and
the Trustee, respectively, authorized to sign the Amendment 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.
(g) A certificate of the Trustee,signed on its behalf by a Vice
President, an Assistant Vice President, an Assistant Treasurer or an
Assistant Secretary, dated the date hereof (the statements made in
which certificate shall be true on and as of the date hereof),
certifying as to (A) a true and correct copy of its bylaws (and all
amendments thereto) as in effect on the date hereof and (B) the due
authentication of any Class A Certificates issued pursuant to the
transactions contemplated by the Amendment Documents.
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(h) A favorable opinion of Xxxxx, Day, Xxxxxx & Xxxxx, counsel
for the Parent, the Servicer and the Seller, in form and substance
satisfactory to the Program Agent which shall include, without
limitation, (A) an opinion as to enforceability of the Amendment
Documents and (B) a general corporate opinion.
(i) (A) An executed Notice of Increase, substantially in the form
of Exhibit C to the Certificate Purchase Agreement, if any, and (B) the
Class A Certificates, if any, each delivered in accordance with the
provisions of Section 2.05(b) of the Certificate Purchase Agreement.
(j) Evidence of payment of all related fees and expenses then due
and payable in connection with the Amendment Documents.
This Amendment is subject to the provisions of Section 8.01 of the Certificate
Purchase Agreement.
SECTION 3. LIQUIDITY PROVIDER COMMITMENTS, WAIVER. (A) Subject to
fulfillment of all of the conditions of effectiveness set forth in Section 2
hereof, each Liquidity Provider party hereto hereby agrees that, (i) as of the
date hereof, such Liquidity Provider's Commitment under the Certificate Purchase
Agreement will be the amount set forth opposite such Liquidity Provider's name
on the signature pages hereto under the caption "Liquidity Provider Commitment",
and (ii) for purposes of the definition of "COMMITMENT" in Section 1.01 of the
Certificate Purchase Agreement, such Liquidity Provider's signature page hereto
will constitute a signature page to the Certificate Purchase Agreement.
(B) Subject to fulfillment of all of the conditions of effectiveness
set forth in Section 2 hereof, the parties hereto hereby (i) waive the notice
requirements set forth in the second sentence of Section 2.07 of the Certificate
Purchase Agreement, and (ii) agree that, notwithstanding anything provided for
under Section 2.07 of the Certificate Purchase Agreement, the first Extension
Term shall have commenced as of such date of the fulfillment of all of the
conditions of effectiveness set forth in Section 2 hereof.
SECTION 4. REFERENCE TO AND EFFECT ON THE TRANSACTION DOCUMENTS. (a) On
and after the effectiveness of this Amendment, each reference in the
Certificate Purchase Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Certificate Purchase Agreement, and each
reference in the Transaction Documents to "the Certificate Purchase Agreement",
"thereunder", "thereof" or words of like import referring to the Certificate
Purchase Agreement with respect to the Series 1997-1, shall mean and be a
reference to such Certificate Purchase Agreement, as amended by this Amendment.
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(b) The Certificate Purchase Agreement, as specifically amended
by this Amendment, is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed (except to the extent of the
waiver set forth in Section 3(B) hereof).
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any party hereto under the Transaction Documents, nor
constitute a waiver of any provision of the Transaction Documents.
SECTION 5. COSTS AND EXPENSES. The Seller agrees to pay on demand
all costs and expenses of the Program Agent and the Trustee in connection with
the preparation, execution, delivery and administration, modification and
amendment of the Amendment Documents and the other instruments and documents to
be delivered hereunder and thereunder without limitation, the reasonable fees
and expenses of counsel for the Program Agent and the Trustee.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment 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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
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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
firt above written.
THE EL-BEE RECEIVABLES
CORPORATION, as Seller
By:/s/Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title:
CORPORATE RECEIVABLES
CORPORATION, as Purchaser
By: CITICORP NORTH AMERICA,
INC., as Attorney-in-Fact
By /s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
CITICORP NORTH AMERICA, INC., as
Program Agent
By /s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Trustee
By /s/Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
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LIQUIDITY PROVIDERS:
Liquidity Provider
Commitment:
Thirty Million Dollars,
$30,000,000
ABN AMRO, N.V., as Liquidity Provider
By:/s/Xxxxxx X. Penee
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Name: Xxxxxx X. Penee
Title: Vice President
By:/s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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Liquidity Provider
Commitment:
Seventy-Five Million Dollars,
$75,000,000
CITIBANK, N.A., as Liquidity Provider
By/s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Attorney-in-Fact
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Liquidity Provider
Commitment:
$50,000,000
PEOPLES BENEFIT LIFE INSURANCE
COMPANY, as Liquidity Provider
By:/s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President - Investment
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Liquidity Provider
Commitment:
Twelve Million Dollars,
$12,000,000
CREDIT COMMUNAL DE BELGIQUE,
as Liquidity Provider
By:/s/Jan E. van Panhuys
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Name: Jan E. van Panhuys
Title: General Manager
/s/Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
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CONSENT
Dated as of November 25, 1998
The undersigned, THE XXXXX-XXXXXXX STORES CORP., and Ohio Corporation,
as Parent under the Parent Undertaking Agreement dated as of December 30, 1998
(the "PARENT UNDERTAKING") in favor of the Trustee on behalf of the holders of
the Investor Certificates, hereby consents to the foregoing Amendment, the
Amendment to the Supplement and the Waiver to Pooling and Servicing Agreement
(collectively, the "AMENDMENTS") and hereby confirms and agrees that
notwithstanding the effectiveness of such Amendments, the Parent Undertaking
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects, except that, on and after the effectiveness of
such Amendments, each reference in the Parent Undertaking to a Transaction
Document shall mean and be a reference to such Transaction Documents, as amended
by such Amendments, as the case may be.
THE XXXXX-XXXXXXX STORES CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title:
