EIGHTH AMENDMENT AGREEMENT
[Execution Copy]
This Eighth Amendment Agreement (“Amendment”) is executed as of the 13th day of
March, 2006, by and among Pier 1 Funding, L.L.C., a Delaware limited liability company, as
transferor (the “Transferor”), Pier 1 Imports (U.S.), Inc., a Delaware corporation, as servicer
(the “Servicer”), and Xxxxx Fargo Bank, National Association (successor by merger to Xxxxx Fargo
Bank Minnesota, National Association), a national banking association, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Transferor, the Servicer and the Trustee executed the Series 2001-1 Supplement
dated as of September 4, 2001 (as heretofore amended, the “Supplement”), to the Pooling and
Servicing Agreement dated as of February 12, 1997, among such parties (as heretofore amended, the
“Agreement;” unless otherwise defined herein, capitalized terms used herein shall have the meanings
assigned to such terms in the Agreement or the Supplement, as applicable); and
WHEREAS, the parties hereto have agreed to amend further the Supplement on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment of the Supplement. Effective on the date hereof and subject to
the satisfaction of the condition precedent set forth in Section 2 below, the Supplement is hereby
amended as follows:
(a) Section 1.9(a) of the Supplement is amended by adding thereto, in proper
alphabetical position, the following new definition:
“Store Payment Cash Collateral Account” shall have the meaning
specified in Section 4.20 of the Agreement.
(a) Section 1.7 of the Supplement is amended by adding thereto, in proper
numerical order, the following new section:
Section 4.20. Store Payment Cash Collateral Account.
(a) Unless Pier 1 Imports’ Long-Term Issuer Credit Rating (Local
Currency) by Standard & Poor’s shall then be BB or higher and its corporate
family rating by Moody’s shall then be Ba2 or higher, the Transferor, in
order to comply with the requirements of Section 4.18(a) of the Agreement,
shall establish on or before March 20, 2006, and thereafter maintain until
terminated in accordance with the terms of this Section 4.20, in the name of
the Trustee, for the benefit of the Class A Certificateholders, an Eligible
Deposit Account (the “Store Payment Cash
Collateral Account”) bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Class A
Certificateholders. The Store Payment Cash Collateral Account shall
initially be established with the Trustee. The Trustee shall possess all
right, title and interest in all funds and other property from time to time
credited to or on deposit in the Store Payment Cash Collateral Account and
in all proceeds thereof. The Store Payment Cash Collateral Account shall be
under the sole dominion and control of the Trustee for the benefit of the
Class A Certificateholders. If at any time the Store Payment Cash
Collateral Account ceases to be an Eligible Deposit Account, the Trustee (or
the Servicer on its behalf) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which the Administrative Agent
shall consent) establish a new Store Payment Cash Collateral Account meeting
the conditions specified above as an Eligible Deposit Account, and shall
transfer all funds and other property from the old Store Payment Cash
Collateral Account to such new Store Payment Cash Collateral Account. The
Trustee, at the written direction of the Servicer, shall make withdrawals
from the Store Payment Cash Collateral Account from time to time in an
amount up to the amount on deposit therein at such time, for the purposes
set forth in this Supplement. On or before March 20, 2006, the Transferor
shall deposit $2,408,061.34 into the Store Payment Cash Collateral Account.
(b) Funds on deposit in the Store Payment Cash Collateral Account shall
be invested by the Trustee at the written direction of the Transferor or the
Servicer in Cash Equivalents selected by the Transferor or the Servicer.
Any investment instructions required to be given to the Trustee pursuant to
the terms hereof must be given to the Trustee no later than 12:00 p.m. (New
York City time) on the date such investment is to be made. In the event the
Trustee receives such investment instruction later than such time, the
Trustee may, but shall have no obligation to, make such investment. In the
event the Trustee does not receive such investment instruction on such date,
or the investment instruction is received after 12:00 p.m. (New York City
time) on such date, and the investment is not made pursuant to the
immediately preceding sentence, all funds shall be invested by the Trustee
in an interest bearing demand cash account of Xxxxx Fargo Bank, National
Association, that qualifies as one of the Cash Equivalents described in
clause (b) of the definition of Cash Equivalents. In the event the Trustee
is unable to make an investment required in an investment instruction
received by the Trustee after 12:00 p.m. (New York City time) on such day,
such investment shall be made by the Trustee on the next succeeding Business
Day. In no event shall the Trustee be liable for any investment not made
pursuant to investment instructions received after 12:00 p.m. (New York City
time) on the day such investment is requested to be made. In no event shall
the Trustee be liable for the selection of Cash Equivalents or for
investment losses incurred thereon, except with respect to investments on
which the
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institution acting as the Trustee is an obligor. The Trustee shall
have no liability in respect of losses incurred as a result of the failure
of the Transferor or the Servicer to provide timely written investment
direction. Funds on deposit in the Store Payment Cash Collateral Account on
any Transfer Date, after giving effect to any withdrawals from the Store
Payment Cash Collateral Account to be made on the immediately following
Distribution Date, shall be invested in such Cash Equivalents that will
mature so that such funds will be available for withdrawal on or prior to
the following Transfer Date. The Trustee shall hold such Cash Equivalents
for the benefit of the Class A Certificateholders. No such Cash Equivalent
shall be disposed of prior to its maturity. On each Distribution Date, all
interest and earnings (net of losses and investment expenses for the account
of the Transferor, if any) accrued since the preceding Distribution Date on
funds on deposit in the Store Payment Cash Collateral Account may be
remitted to the Transferor upon its request, but otherwise shall remain on
deposit in the Store Payment Cash Collateral Account and available for
withdrawal pursuant to Section 4.20(c) or Section 4.20(d), as applicable.
For purposes of determining the availability of funds or the balance in the
Store Payment Cash Collateral Account for any reason under this Supplement,
except as otherwise provided in the preceding sentence, investment earnings
on such funds shall be deemed not to be available or on deposit.
(c) If on any Distribution Date, the Class A Required Amount,
determined without giving effect to any amount available to be withdrawn
from the Store Payment Cash Collateral Account, is greater than zero, then
the Trustee shall withdraw from the Store Payment Cash Collateral Account
(in accordance with the Settlement Statement delivered by the Servicer to
the Trustee pursuant to Section 3.4(c) of the Agreement) the lesser of the
Class A Required Amount, as so determined, and the amount then on deposit in
the Store Payment Cash Collateral Account, and shall apply such amount (in
accordance with the Settlement Statement delivered by the Servicer to the
Trustee pursuant to Section 3.4(c) of the Agreement) to the components of
the Class A Required Amount, as so determined, in the same priority as
amounts are applied to such components from Available Series 2001-1 Finance
Charge Collections pursuant to Section 4.11(a) of the Agreement.
(d) Notwithstanding anything else to the contrary in this Section 4.20,
if a Pay Out Event shall have occurred, then on the first Distribution Date
thereafter, after giving effect to any withdrawal therefrom pursuant to
Section 4.20(c) on such date, the Trustee shall withdraw from the Store
Payment Cash Collateral Account (in accordance with the Settlement Statement
delivered by the Servicer to the Trustee pursuant to Section 3.4(c) of the
Agreement) the lesser of the Class A Invested Amount determined after giving
effect to all other payments, deposits and allocations on such Distribution
Date, and the amount then on deposit in
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the Store Payment Cash Collateral Account, and shall remit such amount
(in accordance with the Settlement Statement delivered by the Servicer to
the Trustee pursuant to Section 3.4(c) of the Agreement) to the Class A
Certificateholders ratably (based upon their respective aggregate Undivided
Interests in the Class A Certificates) in reduction of the outstanding
principal amount of the Class A Certificates.
(e) On the earlier of (i) the day on which the principal balance of the
Class A Certificates and all other accrued and unpaid amounts owing to the
Class A Certificateholders shall have been paid in full to the Class A
Certificateholders, and (ii) the first Distribution Date following the date
hereafter on which Pier 1 Imports’ Long-Term Issuer Credit Rating (Local
Currency) by Standard & Poor’s is BB or higher and its corporate family
rating by Xxxxx’x is Ba2 or higher, the Trustee shall withdraw from the
Store Payment Cash Collateral Account (in accordance with the Settlement
Statement delivered by the Servicer to the Trustee pursuant to Section
3.4(c) of the Agreement) and pay to the Transferor all amounts, if any, on
deposit in the Store Payment Cash Collateral Account, and the Store Payment
Cash Collateral Account shall be deemed to have terminated for purposes of
this Supplement.
SECTION 2. Condition Precedent. This Amendment shall become effective as of the date
hereof upon the execution of this Amendment by all of the parties hereto and the execution and
delivery of the Consent to Amendment to Supplement attached hereto.
SECTION 3. Miscellaneous.
3.1 Ratification. As amended hereby, the Supplement is in all respects ratified and
confirmed and the Supplement as so supplemented by this Amendment shall be read, taken and
construed as one and the same instrument.
3.2 Representation and Warranty. Each of the Transferor and the Servicer represents
and warrants that this Amendment has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is considered in a proceeding at
law or in equity).
3.3 Governing Law; Parties; Severability. This Amendment shall be governed by and
construed in accordance with the laws and decisions (as opposed to the conflicts of law provisions)
of the State of New York. Whenever in this Amendment there is a reference made to any of the
parties hereto, such reference shall also be a reference to the successors and assigns of such
party, including, without limitation, any debtor-in-possession or trustee. The provisions of this
Amendment shall be binding upon and shall inure to the benefit of the successors and assigns of the
parties hereto. Whenever possible, each provision of this Amendment shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any
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provision of this Amendment shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Amendment.
3.4 Counterparts. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have caused this Amendment to
be fully executed by their respective officers as of the day and year first above written.
| PIER 1 FUNDING, L.L.C., | |||||
| Transferor | |||||
| By | |||||
| Name: | |||||
| Title: | |||||
| PIER 1 IMPORTS (U.S.), INC., | |||||
| Servicer | |||||
| By | |||||
| Name: | |||||
| Title: | |||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION | |||||
| (successor by merger to Xxxxx Fargo Bank | |||||
| Minnesota, National Association), Trustee | |||||
| By | |||||
| Name: | |||||
| Title: | |||||
[Consent to Amendment to Supplement Attached]
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CONSENT TO AMENDMENT TO SUPPLEMENT
The undersigned, constituting the Majority Investors under and as defined in the Certificate
Purchase Agreement dated as of September 4, 2001 (as heretofore amended, the “Purchase Agreement”),
among Pier 1 Funding, L.L.C., as the transferor, Pier 1 Imports (U.S.), Inc., as the servicer, the
Class A Purchasers named therein and JPMorgan Chase Bank, N.A. (as successor to Xxxxxx Guaranty
Trust Company of New York), as the administrative agent, hereby consent to the terms and conditions
of the Eighth Amendment Agreement dated as of March 13, 2006, among Pier 1 Funding, L.L.C., as
transferor, Pier 1 Imports (U.S.), Inc., as servicer, and Xxxxx Fargo Bank, National Association
(successor by merger to Xxxxx Fargo Bank Minnesota, National Association), as trustee, relating to
the Series 2001-1 Supplement dated as of September 4, 2001, as heretofore amended, among the same
parties.
| PARK AVENUE RECEIVABLES COMPANY, LLC | |||||
| (as successor to Delaware Funding Company, LLC), | |||||
| as the sole Structured Investor | |||||
| By JPMorgan Chase Bank, N.A., as attorney-in-fact | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| JPMORGAN CHASE BANK, N.A., | |||||
| as the sole Committed Investor | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
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