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EXHIBIT 10.7
YOUNKERS CREDIT CORPORATION
SELLER
XXXXXXXX'X, INC.
(AS SUCCESSOR BY MERGER TO YOUNKERS, INC.)
SERVICER
AND
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
TRUSTEE
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AMENDMENT NO. 3
DATED AS OF MAY 6, 1998
TO THE
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 13, 1995
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THIS AMENDMENT NO. 3 ("Amendment") to the Pooling and Servicing
Agreement, dated as of June 13, 1995 (the "Pooling and Servicing Agreement"),
dated as of May 6, 1998, is by and among Younkers Credit Corporation, a Delaware
corporation, (the "Seller"), Xxxxxxxx'x, Inc., a Tennessee corporation and
successor by merger to Younkers, Inc., (the "Servicer"), and The Chase Manhattan
Bank, formerly known as Chemical Bank, as trustee (the "Trustee"). Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
W I T N E S S E T H
WHEREAS, the parties hereto are authorized by Section 13.1(b) of the
Pooling and Servicing Agreement to enter into this Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, in the Pooling and Servicing Agreement and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT
1.1 Article II of the Pooling and Servicing Agreement is
hereby amended by adding the following Section 2.9:
"Section 2.9 Ownership of Certificates in the
Xxxxxxxx'x Credit Card Master Trust. The Trustee, upon the request of the
Seller, may transfer and assign all Receivables and all other Trust Assets to
the Xxxxxxxx'x Credit Card Master Trust (the "PCCMT") in exchange for
certificates representing beneficial ownership of undivided interests in the
PCCMT, pursuant to a series supplement to the PCCMT that allocates to holders of
the Series 1995-1 Class A Certificates and the Series 1995-1 Class B
Certificates, Principal Collections and Finance Charge Collections on
substantially identical terms to the Series 1995-1 Series Supplement to this
Agreement."
1.2 The reporting obligations set out in Sections 3.4, 3.5 and
3.6 of the Pooling and Servicing Agreement shall be deleted and replaced in
their entirety by Sections 3.4, 3.5 and 3.6 (set out below) of the Master
Pooling and Servicing Agreement dated as of August 21, 1997 (the "PCCMT PSA") by
and among Xxxxxxxx'x Credit Corporation, as Transferor, Xxxxxxxx'x, Inc., as
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
cross-references in the provisions of the PCCMT PSA hereby adopted shall be to
Sections, sub-sections or Exhibits of the PCCMT PSA.
"Section 3.4 Reports and Records for the Trustee
(a) Initial Report. On the Closing Date with
respect to each Series of the Investor Certificates,
the Servicer shall prepare and deliver, as provided
in Section 13.5, to the Trustee and the
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Rating Agencies, and the Persons, if any, specified
in any Supplement with respect to each class of
Investor Certificates of any then outstanding Series
which is not assigned a rating by any Rating Agency,
an Officer's Certificate substantially in the form of
Exhibit D setting forth the Aggregate Principal
Receivables, the Transferor Amount, the Discount
Option Receivables and the Transferor Interest
Percentage as of the end of the day two Business Days
preceding the Closing Date and the expected
Transferor Amount after giving effect to the issuance
of such Series.
(b) Daily Reports. For so long as deposits
of Collections are required to be made daily by the
Servicer pursuant to Section 4.1(f), on each Business
Day commencing on the Initial Closing Date, the
Servicer shall prepare, maintain at the office of the
Servicer and make available for inspection by the
Trustee, a record setting forth the aggregate amount
of Collections processed by the Servicer on the
second preceding Business Day. The Servicer shall
prepare such other reports on a daily (or less
frequent) basis as may be required by any Supplement.
(c) Monthly Servicer's Certificate. By 1:00
p.m., Minneapolis, Minnesota time on each
Determination Date, the Servicer shall deliver, as
provided in Section 13.5, to the Trustee, the Paying
Agent and the Rating Agencies, an Officer's
Certificate signed by a Servicing Officer
substantially in the form of Exhibit E (the "Monthly
Servicer's Certificate") (with the Monthly
Certificateholder's Statement required pursuant to
the applicable Supplement attached) setting forth the
following information (which, in the case of clauses
(iii), (iv) and (viii) below, will be stated on the
basis of an original principal amount of $1,000 per
Certificate): (i) the aggregate amount of Collections
processed for the immediately preceding Monthly
Period and the aggregate amount of Collections of
Finance Charge Receivables and the aggregate amount
of Collections of Principal Receivables processed
during such Monthly Period; (ii) the Investor
Percentage with respect to each Series of
Certificates with respect to Collections of Principal
Receivables, Finance Charge Receivables and Defaulted
Receivables processed during the immediately
preceding Monthly Period; (iii) for each Series and
for each class within any such Series, the amount of
such distribution allocable to principal, if
applicable; (iv) for each Series and for each class
within any such Series, the amount of such
distribution allocable to interest, if applicable;
(v) the aggregate outstanding balance of the Accounts
which were delinquent by 31 to 60 days, 61 to 90 days
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and 91 days or more as of the close of business on
the last day of the immediately preceding Monthly
Period immediately preceding such Distribution Date;
(vi) for each Series and for each class within any
such Series, the Investor Default Amount for the
immediately preceding Monthly Period; (vii) for each
Series and for each class within any such Series, the
amount of the Investor Charge Offs and the amount of
the reimbursements thereof for the next succeeding
Distribution Date; (viii) for each Series, the
Monthly Servicing Fee for the next succeeding
Distribution Date; (ix) for each Series, the existing
deficit controlled amortization amount or deficit
controlled accumulation amount, if applicable; (x)
the aggregate amount of Receivables in the Trust at
the close of business on the last day of the Monthly
Period immediately preceding such Distribution Date;
(xi) for each Series, the Investor Amount at the
close of business on the last day of the Monthly
Period immediately preceding such Distribution Date;
(xii) the available amount of Enhancement, if any,
for each Series; and (xiii) whether a Pay Out Event
with respect to any Series shall have occurred during
or with respect to the immediately preceding Monthly
Period. The Trustee shall make such statement
available to the Certificateholders, but shall be
under no duty to recalculate, verify or recompute the
information supplied to it under this Section 3.4.
Section 3.5 Annual Servicer's Certificate. The
Servicer will deliver, as provided in Section 13.5, to the
Trustee, the Rating Agencies and the Persons, if any,
specified in the Supplement with respect to each class of
Investor Certificates of any then outstanding Series which is
not assigned a rating by any Rating Agency, on or before June
30 of each calendar year, beginning with 1998, an Officer's
Certificate substantially in the form of Exhibit F (a) stating
that a review of the activities of the Servicer during the
preceding Fiscal Year (or, in the case of the first such
certificate, during the period from the Initial Closing Date
until February 3, 1998) and of its performance under this
Agreement was made under the supervision of the officer
signing such certificate and (b) stating that to the best of
such officer's Knowledge, based on such review, either there
has occurred no event which, with the giving of notice or
passage of time or both, would constitute a Servicer Default
and the Servicer has fully performed all its obligations under
this Agreement throughout such year, or, if there has occurred
such an event, specifying each such event known to such
officer and the nature and status thereof. A copy of such
Officer's Certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee
directed to the Trustee's address specified in Section 13.5
hereof.
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Section 3.6 Annual Independent Public Accountants'
Servicing Report.
(a) On or before June 30 of each calendar
year, beginning with 1998, the Servicer shall cause a
firm of nationally recognized independent public
accountants (who may also render other services to
the Servicer or the Transferor) to furnish, as
specified in Section 13.5, a report prepared in
accordance with standards established by the American
Institute of Certified Public Accountants and,
accordingly, including such procedures or examination
as they considered necessary in the circumstances, to
the Trustee, the Rating Agencies and the Persons, if
any, specified in any Supplement with respect to each
class of Investor Certificates of any then
outstanding Series which is not assigned a rating by
any Rating Agency, and, as may be required by any
Series Supplement, any Enhancement Provider to the
effect that, such firm has applied certain procedures
to certain documents and records relating to the
servicing of the Accounts, compared the information
contained in the Servicer's certificates issued
during the period covered by the report with such
documents and records and that, based upon such
procedures or examination, no matters came to the
attention of such accountants that caused them to
believe that such servicing was not conducted in all
material respects, in conformity with Section 3.4(c),
except for such exceptions as such accountants
believe to be immaterial and such other exceptions as
shall be set forth in such report. Such procedures or
examination will include comparisons of the
mathematical calculations contained in the Monthly
Servicer's Certificates forwarded by the Servicer
pursuant to Section 3.4(c) during the period covered
by such report with the Servicer's computer reports
that were the source of such amounts, and such report
shall state that, on the basis of such comparison,
such accountants are of the opinion that such amounts
are consistent, except for such exceptions as they
believe to be immaterial and such other exceptions as
shall be set forth in such report. In the event such
firm requires the Trustee to agree to the procedures
performed by such firm, the Servicer shall direct the
Trustee in writing to so agree; it being understood
and agreed that the Trustee will deliver such letter
of agreement in conclusive reliance upon the
direction of the Servicer, and the Trustee makes no
independent inquiry or investigation as to, and shall
have no obligation or liability in respect of, the
sufficiency, validity or correctness of such
procedures. A copy of such report may be obtained by
any Investor Certificateholder or Certificate Owner
by a request in writing to (i) the Trustee directed
to the Trustee's address specified
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in Section 13.5 hereof or (ii) the Servicer at the
Servicer's address specified in such Section 13.5.
(b) On or before June 30 of each calendar
year, beginning with 1998, the Servicer shall cause a
firm of nationally recognized independent public
accountants (who may also render other services to
the Servicer or the Transferor) to furnish, as
specified in Section 13.5, a report to the Trustee,
the Rating Agencies and the Persons, if any,
specified in any Supplement with respect to each
class of Investor Certificates of any then
outstanding Series which is not assigned a rating by
any Rating Agency, and, as may be required by any
Series Supplement, any Enhancement Provider, to the
effect that in connection with their examination of
the Monthly Servicer's Certificates, nothing came to
their attention that caused them to believe that the
Servicer failed to comply with provisions of Sections
3.2, 3.4(c), 4.1 and 8.8 of this Agreement. In the
event such firm requires the Trustee to agree to the
procedures performed by such firm, the Servicer shall
direct the Trustee in writing to so agree; it being
understood and agreed that the Trustee will deliver
such letter of agreement in conclusive reliance upon
the direction of the Servicer, and the Trustee makes
no independent inquiry or investigation as to, and
shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such
procedures. A copy of such report may be obtained by
any Investor Certificateholder or Certificate Owner
by a request in writing to (i) the Trustee directed
to the Trustee's address specified in Section 13.5
hereof or (ii) the Servicer at the Servicer's address
specified in such Section 13.5."
1.3 Section 13.2(d)(ii) of the Pooling and Servicing Agreement
shall be deleted and replaced in its entirety by Section 13.2(d)(ii) of the
PCCMT PSA (set out below). All cross-references in the provisions of the PCCMT
PSA hereby adopted shall be to Sections, sub-sections or Exhibits of the PCCMT
PSA.
"(ii) on or before June 30 of each year,
beginning with June 30, 1998, an Opinion of Counsel,
dated as of a date within 90 days of such day,
substantially in the form of Exhibit H."
SECTION 2. REPRESENTATIONS AND WARRANTIES
Each of the Seller and the Servicer represents and warrants that:
(a) Its execution, delivery and performance of this Amendment are
within its corporate powers, have been duly authorized by all necessary
corporate action and do not require any consent or approval which has not been
obtained.
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(b) This Amendment and the Pooling and Servicing Agreement as amended
hereby are legal, valid and binding obligations of it, enforceable in accordance
with their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equitable principles.
SECTION 3. CONDITIONS PRECEDENT
This Amendment shall become effective as of its date, provided that all
of the following conditions are met:
(a) This Amendment shall have been executed and delivered by the
parties hereto;
(b) The Servicer shall have provided an Officer's Certificate to the
Trustee to the effect that (i) this Amendment will not materially and adversely
affect the interests of any Certificateholder, (ii) the Servicer provided at
least ten Business Days' prior written notice to each Rating Agency of this
Amendment and received written confirmation from each Rating Agency to the
effect that the rating of any Series rated by such Rating Agency will not be
reduced or withdrawn as a result of this Amendment, and (iii) all of the
conditions precedent to the effectiveness of this Amendment have been satisfied;
and
(c) The Seller and Servicer shall have provided Opinions of Counsel to
the Trustee to the effect that (i) this Amendment shall not cause the Trust to
be characterized for Federal income tax purposes as an association taxable as a
corporation, or otherwise have any material adverse impact on the Federal income
taxation of any outstanding Series of Investor Certificates or any Certificate
Owner, and (ii) this Amendment complies with all the requirements of the Pooling
and Servicing Agreement.
SECTION 4. MISCELLANEOUS
(a) Applicability of the Pooling and Servicing Agreement
In all respects not inconsistent with the terms and provisions of this
Amendment, the provisions of the Pooling and Servicing Agreement are hereby
ratified, approved and confirmed.
(b) Headings
The captions in this Amendment are for convenience of reference only
and shall not define or limit the provisions hereof.
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(c) Counterparts
This Amendment may be executed in counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
but one and the same instrument.
(d) Governing Law
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(e) The Trustee
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the sufficiency of this Amendment or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Seller
and the Servicer.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
YOUNKERS CREDIT CORPORATION,
as Seller
By: _____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXXXX'X, INC.,
as Servicer
By: _____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Name:
Title:
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