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Exhibit 10(a)
EXECUTION COPY
AMENDMENT NO.1 TO
THE XXXXX-XXXXXXX MASTER TRUST
POOLING AND SERVICING AGREEMENT
AMENDMENT NO. 1 TO THE XXXXX-XXXXXXX MASTER TRUST POOLING AND
SERVICING AGREEMENT, dated as of May 19, 2000 among the THE EL-BEE RECEIVABLES
CORPORATION, a Delaware corporation (the "TRANSFEROR"), THE EL-BEE CHARGIT
CORP., an Ohio corporation (the "SERVICER") and BANKERS TRUST COMPANY, a New
York banking corporation, as Trustee (the "TRUSTEE").
PRELIMINARY STATEMENTS
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(1). The Transferor, the Servicer and the Trustee entered into
that certain Xxxxx-Xxxxxxx Master Trust Pooling and Servicing Agreement dated as
of December 19, 1997 (the "POOLING AND SERVICING AGREEMENT"). All capitalized
terms used herein but not specifically defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
(2). Simultaneously herewith, the Transferor, the Servicer and
the Trustee have entered into the Xxxxx-Xxxxxxx Master Trust Series 2000-1
Supplement (the "SERIES 2000-1 SUPPLEMENT") pursuant to which a new Series of
Investor Certificates known as the "Series 2000-1 Certificates" has been
created.
(3) Simultaneously herewith, the Series 2000-1 Certificates
are being issued pursuant to the Series 2000-1 Certificate Purchase Agreement
among the El-Bee Receivables Corporation, as Seller, Corporate Receivables
Corporation, EagleFunding Capital Corporation and the other commercial paper
conduits from time to time party thereto, as Conduit Purchasers (the "CONDUIT
PURCHASERS"), Citibank, N.A., EagleFunding Capital Corporation and the other
financial institutions from time to time party thereto, as Committed Purchasers
(the "COMMITTED PURCHASERS"), Citicorp North America, Inc., FleetBoston
Xxxxxxxxx Xxxxxxxx Inc. and the other financial institutions from time to time
party thereto, as Managing Agents (the "MANAGING AGENTS"), Citicorp North
America, Inc., as Program Agent for the Purchasers (the "PROGRAM AGENT") and the
Trustee (the "CERTIFICATE PURCHASE AGREEMENT").
(4) In connection with the issuance of the Series 2000-1
Certificates pursuant to the Certificate Purchase Agreement, the parties hereto
have agreed to make certain amendments to the Pooling and Servicing Agreement
upon the terms and conditions and as set forth herein.
SECTION 1. AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT. The
Pooling and Servicing Agrement 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 "CREDIT AGREEMENT" in Section 1.01 thereof is
hereby deleted in its entirety and replaced by the following:
"CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of May 19, 2000 among the Parent, the
lenders party thereto, Citibank, N.A., as Issuer and Citicorp
USA, Inc., as Agent and Swing Loan Bank, as the same may be
amended, supplemented, modified, restated, replaced or
refinanced from time to time.
(b) Clause (ii) of the definition of "ELIGIBLE ACCOUNT" in Section 1.01
thereof is hereby deleted in its entirety and replaced by the following:
(ii) such Account has been originated in connection with the
extension of credit to an Obligor whose application for the
extension of credit was processed through any Originator or an
Affiliate of such Originator, or such Account has been
acquired by any Originator from a third party subject to the
approval of the Majority in Interest, and determined by such
Originator to be in compliance with the Cardholder Guidelines,
including those relating to the extension of credit;
(c) Clause (ix) of the definition of "ELIGIBLE RECEIVABLE" in Section
1.01 thereof is hereby deleted in its entirety and replaced by the following:
(ix) the Obligor of such Receivable has been directed to remit
payments with respect thereto to a Collection Account;
(d) The definition of "ELIGIBLE RECEIVABLE" in Section 1.01 thereof is
hereby amended by adding the following new clause (xii):
(xii) such Receivable is not more than 180 days past due.
(e) The definition of "INTERCREDITOR AGREEMENT" in Section 1.01 thereof
is hereby deleted in its entirety and replaced with the following:
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement
dated as of May 19, 2000 among Citicorp North America, Inc.,
as Program Agent, The El-Bee Receivables Corporation, as
Transferor, The El-Bee Chargit Corp., as Originator and
Servicer, The Xxxxx-Xxxxxxx Stores Corp., as Borrower (as
defined in the Credit Agreement) and Originator, Bankers Trust
Company, as Trustee and Cititcorp USA, Inc., as Bank Agent, as
the same may be amended, supplemented or otherwise modified
from time to time.
(f) Section 2.05(t) thereof is hereby deleted in its entirety and
replaced with the following:
(t) CARDHOLDER AGREEMENTS AND CARDHOLDER GUIDELINES. The
Transferor shall enforce the covenant in each Purchase
Agreement requiring the related Originator
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to comply with and perform its obligations under the
Cardholder Agreements relating to the Accounts and the
Cardholder Guidelines. The Transferor may permit any
Originator to change the terms and provisions of the
Cardholder Agreements or the Cardholder Guidelines in any
respect (including the reduction of the required minimum
monthly payment, the calculation of the amount, or the timing
of charge-offs and the periodic finance charges and other fees
to be assessed thereon), unless such change would have a
Material Adverse Effect; provided, however, that the
Transferor may not permit an Originator to change the required
minimum monthly payment, the underwriting criteria or periodic
finance charge or the calculation of the amount or the timing
of charge-offs (collectively, a "YIELD CHANGE") unless, after
five Business Days' prior written notice to the Rating Agency
of a Yield Change, the Rating Agency shall have provided
written notice to the Transferor that the Rating Agency
Condition shall be satisfied or unless such Yield Change is
mandated by applicable law. The Transferor will not rescind or
cancel, or permit the recission or cancellation of, any
Receivable except as ordered by a court of competent
jurisdiction or other Governmental Authority.
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
of the parties hereto; (b) each of the conditions precedent set forth in Section
4.01 of the Certificate Purchase Agreement shall have either been fulfilled or
waived in accordance with the terms thereof; (c) the Program Agent and the
Trustee shall have received all of the documents, in form and substance
satisfactory to the Program Agent and the Trustee and in sufficient copies as
indicated by the Program Agent and the Trustee, required for the issuance of a
new Series pursuant to the Pooling and Servicing Agreement and (d) the Program
Agent, the Managing Agents and the Trustee shall have received all fees and
expenses due and payable in connection with the issuance of the Series 2000-1
Certificates.
SECTION 3. REFERENCE TO AND EFFECT ON THE TRANSACTION DOCUMENTS.
(a) On and after the effectiveness of this Amendment, each reference in
the Pooling and Servicing Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the Pooling and Servicing Agreement, and
each reference in the Transaction Documents to the "Pooling and Servicing
Agreement", "thereunder", "thereof" or words of like import referring to the
Pooling and Servicing Agreement shall mean and be a reference to such Pooling
and Servicing Agreement, as amended by this Amendment.
(b) The Pooling and Servicing 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.
(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.
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SECTION 4. COSTS AND EXPENSES. The Transferor 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 this Amendment, the Series 2000-1 Supplement and the Certificate
Purchase Agreement and the other instruments and documents to be delivered
hereunder and thereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Program Agent and the Trustee.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which 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 6. 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 duly executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE EL-BEE RECEIVABLES
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
THE EL-BEE CHARGIT CORP.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Treasurer and Secretary
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
SIGNATURE PAGE TO AMENDMENT NO.1
TO POOLING AND SERVICING AGREEMENT
