EXHIBIT 4.1
AMENDMENT NO. 2 TO MASTER POOLING AND SERVICING AGREEMENT
AMENDMENT NO. 2 TO MASTER POOLING AND SERVICING AGREEMENT ("Amendment
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No. 2"), dated as of October 15, 1999, between JCP RECEIVABLES, INC., a Delaware
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corporation ("JCPR"), X. X. XXXXXX COMPANY, INC., a Delaware corporation
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("JCPenney"), as Servicer, and THE FUJI BANK AND TRUST COMPANY, a banking
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corporation organized and existing under the laws of the State of New York, as
Trustee under the Master Pooling and Servicing Agreement, dated as of September
5, 1988, as amended as of October 15, 1997 (the "Agreement"), between JCPR, the
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Servicer and the Trustee.
PRELIMINARY STATEMENT
Section 13.1(a) of the Agreement provides that the Servicer, JCPR and
the Trustee, without the consent of any of the Certificateholders, may from time
to time amend the Agreement and any Supplement to cure any ambiguity, to correct
or supplement any provision therein which may be inconsistent with any other
provisions therein, or to add any other provisions with respect to matters or
questions arising under the Agreement or any Supplement which shall not be
inconsistent with the provisions of the Agreement or any Supplement; provided,
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however, that such amendment shall not, as evidenced by an Opinion of Counsel,
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adversely affect in any material respect the interests of the
Certificateholders. The Servicer and JCPR desire to amend the Agreement as it
relates to Series E pursuant to Section 13.1(a) of the Agreement.
Section 13.1(b) of the Agreement provides that the Servicer, JCPR and
the Trustee, with the consent of the Holders of Investor Certificates evidencing
undivided Interests aggregating not less than 66-2/3% of the Aggregate Investor
Amount of all Series adversely affected, may from time to time amend the
Agreement and any Supplement thereto, subject to satisfaction of certain
conditions precedent set forth therein. The Servicer and JCPR desire to amend
the Agreement as it relates to Series B and Series C pursuant to Section 13.1(b)
of the Agreement.
All terms used in this Amendment No. 2 that are defined in the
Agreement have the meanings assigned to
them therein, except to the extent such terms are amended or modified in this
Amendment No. 2.
In consideration of the mutual agreements contained herein, each party
agrees as follows for the benefit of the other parties and for the benefit of
the Certificateholders:
SECTION 1. Amendment to Agreement.
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(a) The following subsection (e) shall be added to Section 13.1 of the
Agreement:
(e) Notwithstanding the foregoing provisions of this Section
13.1, JCPenney and JCPR may transfer all or a portion of JCPenney's or the
Bank's consumer open end credit card accounts and/or the receivables
arising thereunder, which may include all, but not less than all, of the
Accounts and JCPenney's and JCPR's remaining interest in the Receivables
arising thereunder and in the Trust (collectively, the "Assigned Assets"),
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together with all servicing functions and other obligations under the
Receivables Purchase Agreement and the Pooling and Servicing Agreement or
relating to the transactions contemplated thereby (collectively, the
"Assumed Obligations"), to another entity (the "Assuming Entity"), which
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may be an entity that is not affiliated with JCPenney or JCPR, and make
other changes to the Agreement that are necessary or desirable to
accomplish such transfer, without the consent or approval of any of the
Investor Certificateholders, if the following conditions are satisfied:
(i) the Assuming Entity, the Trustee and JCPenney or JCPR, as the case may
be, shall have entered into an assumption agreement providing for the
Assuming Entity to assume the Assumed Obligations; (ii) all filings
required to perfect the interest of the Trustee in the Receivables arising
under such Accounts shall have been duly made and copies thereof shall have
been delivered to the Trustee; (iii) the Rating Agency Condition; (iv) the
Trustee shall have received an Opinion of Counsel with respect to clauses
(i) and (ii) above in form and substance satisfactory to the Trustee; and
(v) the Trustee shall have received a Tax Opinion. After a permitted
transfer and assumption, neither
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JCPenney nor JCPR shall have further liability or obligation under the
Receivables Purchase Agreement or the Pooling and Servicing Agreement,
other than those liabilities that arose prior to such transfer and
assumption, and JCPenney and JCPR shall remain liable for all of their
respective representations, warranties and covenants made prior to such
transfer and assumption. Following such a permitted transfer and
assumption, the references in subsections 4.3(a) and (d) to "JCPenney"
shall be deemed to be references to the Assuming Entity that assumed
JCPenney's obligations as Servicer under the Pooling and Servicing
Agreement. As used in this Section 13.1(e), "Rating Agency Condition" shall
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mean the notification in writing by each Rating Agency that an action with
respect to the Trust will not result in such Rating Agency reducing or
withdrawing its then existing rating of the Certificates of any outstanding
Series or class of a Series with respect to which it is a Rating Agency,
and "Tax Opinion" shall mean with respect to any action, an Opinion of
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Counsel to the effect that, for federal income tax purposes, (a) such
action will not adversely affect the tax characterization as debt of
Investor Certificates of any outstanding Series that were characterized as
debt at the time of their issuance, (b) following such action the Trust
will not be deemed to be an association (or publicly traded partnership)
taxable as a corporation and (c) such action will not cause or constitute
an event in which gain or loss would be recognized by any Investor
Certificateholder or the Trust (unless, in the case of an Investor
Certificateholder, such Investor Certificateholder shall have consented to
such action).
SECTION 2. Incorporation of Agreement.
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The Agreement, as modified by this Amendment No. 2, is hereby
incorporated by reference and forms a part of this instrument with the same
force and effect as if set forth in full herein. In the event that any term or
provision contained herein shall conflict or be inconsistent with any term or
provision contained in the Agreement, the terms and provisions of this Amendment
No. 2 shall govern. After the date hereof, any reference to the Agreement shall
mean the Agreement as amended by this Amendment No. 2.
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SECTION 3. Ratification of the Agreement.
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As amended by this Amendment No. 2, the Agreement is in all respects
ratified and confirmed, and the Agreement and this Amendment No. 2 shall be
read, taken and construed as one and the same instrument.
SECTION 4. Governing Law.
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THIS AMENDMENT NO. 2 SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 5. Counterparts.
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This Amendment No. 2 may be executed in two or more counterparts (and
by different parties on separate counterparts), each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, JCPR, the Servicer and the Trustee have caused
this Amendment No. 2 to be duly executed by their respective officers as of the
day and year first above written.
JCP RECEIVABLES, INC.
By
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Name:
Title:
X. X. PENNEY COMPANY, INC.
By
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Name:
Title:
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By
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Name:
Title:
Consented to:
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
By: By:
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Name: Name:
Title: Title:
