NINE WEST FUNDING CORPORATION,
Transferor
NINE WEST GROUP INC.,
Servicer
and
THE BANK OF NEW YORK
Not in its individual capacity,
but solely as Trustee of the Nine
West Trade Receivables Master Trust
AMENDED AND RESTATED SERIES 1995-1 SUPPLEMENT
Dated as of July 31, 1998
to
POOLING AND SERVICING AGREEMENT
Dated as of December 28, 1995
NINE WEST TRADE RECEIVABLES MASTER TRUST
AMENDED AND RESTATED FLOATING RATE
RECEIVABLES BACKED CERTIFICATES,
SERIES 1995-1
TABLE OF CONTENTS
Page
ARTICLE I
The Series 1995-1 Certificates
SECTION 1.01. Designation. . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Definitions. . . . . . . . . . . . . . . . . . 2
SECTION 1.03. Other Definitional Provisions. . . . . . . . .13
SECTION 1.04. Conditions Precedent to the Effectiveness of
this Amended and Restated Series Supplement
Agreement. . . . . . . . . . . . . . . . . . .15
ARTICLE II
Additional Covenants
SECTION 2.01. Covenants of the Servicer. . . . . . . . . . .17
ARTICLE III
Servicing Fee
SECTION 3.01. Servicing Compensation . . . . . . . . . . . .18
ARTICLE IV
Rights of Series 1995-1 Certificateholders and
Allocation and Application of Collections
SECTION 4.01. Establishment of Series Accounts . . . . . . .18
SECTION 4.02. Settlement Procedures. . . . . . . . . . . . .21
SECTION 4.03. New Issuances. . . . . . . . . . . . . . . . .26
ARTICLE V
Distributions and Reports to
Series 1995-1 Certificateholders
SECTION 5.01. Distributions. . . . . . . . . . . . . . . . .26
SECTION 5.02. Annual Certificateholders' Statement . . . . .30
ARTICLE VI
Series 1995-1 Early Amortization Events
SECTION 6.01. Series 1995-1 Early Amortization Events. . . .31
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Ratification of Agreement. . . . . . . . . . .32
SECTION 7.02. Counterparts . . . . . . . . . . . . . . . . .32
SECTION 7.03. Governing Law; Jurisdiction; Service of
Process. . . . . . . . . . . . . . . . . . . .32
SECTION 7.04. Appointment of Successor Servicer. . . . . . .33
SECTION 7.05. The Trustee. . . . . . . . . . . . . . . . . .33
SECTION 7.06. Assignment by CRC and the Liquidity
Provider . . . . . . . . . . . . . . . . . . .33
SECTION 7.07. No Assignability by Transferor or
Servicer . . . . . . . . . . . . . . . . . . .35
SECTION 7.08. Amendments and Waivers . . . . . . . . . . . .35
SECTION 7.09. Indemnification of the Trustee, the Trust and
the Investor Certificateholders. . . . . . . .36
SECTION 7.10. Servicer Indemnification . . . . . . . . . . .38
SECTION 7.11. Additional Reporting Requirements. . . . . . .40
SECTION 7.12. Effect on Original Series 1995-1 Supplement. .40
THIS AMENDED AND RESTATED SERIES 1995-1 SUPPLEMENT, dated as of July
31, 1998 (this "SERIES SUPPLEMENT"), amends and restates that certain Series
1995-1 Supplement, dated as of December 28, 1995, entered into among NINE WEST
FUNDING CORPORATION, a Delaware special purpose corporation, as Transferor
(the "TRANSFEROR"), NINE WEST GROUP INC., a Delaware corporation, as Servicer
(the "SERVICER"), and The Bank of New York, a New York banking corporation, as
Trustee (the "TRUSTEE").
PRELIMINARY STATEMENT
WHEREAS, the parties hereto previously entered into that certain
Series 1995-1 Supplement dated as of December 28, 1995 (the "ORIGINAL SERIES
1995-1 SUPPLEMENT") which, among other things, sets forth the terms of Series
1995-1 as required by Section 6.08 of the Pooling and Servicing Agreement,
dated as of December 28, 1995 (as amended, restated, supplemented and
otherwise modified from time to time, the "Agreement") to provide for the
issuance, authentication and delivery of the Floating Rate Receivables Backed
Certificates, Series 1995-1, Class A (the "CLASS A CERTIFICATES") and the
Floating Rate Receivables Backed Certificates, Series 1995-1, Class B (the
"CLASS B CERTIFICATES");
WHEREAS, the parties hereto desire to amend and restate, in their
entirety (i) the Class A Certificates (as so amended and restated, the
"CERTIFICATES" or the "SERIES 1995-1 CERTIFICATES") and (ii) together with the
other parties thereto, the Class A Certificate Purchase Agreement, dated as of
December 28, 1995, among the Transferor as seller, CRC as purchaser, the
financial institutions parties thereto as Liquidity Providers, the Program
Agent and the Trustee (as so amended and restated, the "CERTIFICATE PURCHASE
AGREEMENT");
WHEREAS, the parties hereto desire to repay and terminate, in their
entirety (i) the Class B Certificates, and (ii) the Class B Certificate
Purchase Agreement, dated as of December 28, 1995, among the Transferor as
seller, the financial institutions parties thereto as "Purchasers", the
Program Agent and the Trustee (the "CLASS B CERTIFICATE PURCHASE AGREEMENT"),
in each case pursuant to the Termination Agreement dated as of July 31, 1998,
among the parties to the Class B Certificate Purchase Agreement (the
"TERMINATION AGREEMENT");
WHEREAS, in furtherance of the foregoing desired amendments,
restatements and terminations, the parties hereto now wish to enter into this
Series Supplement in order to amend and restate the Original Series 1995-1
Supplement and the terms of the Class A Certificates as of the Effective
Restatement Date.
ARTICLE I
THE SERIES 1995-1 CERTIFICATES
SECTION 1.01. DESIGNATION. (a) On and after the Effective
Restatement Date, after giving effect to the amendment and restatement of the
Class A Certificates and the termination of the Class B Certificates, the
"Series 1995-1 Certificates" shall be designated generally as Floating Rate
Receivables Backed Certificates, Series 1995-1.
(b) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
SECTION 1.02. DEFINITIONS. (a) Whenever used in this Series
Supplement the following words and phrases shall have the following meanings.
"ADJUSTED EURODOLLAR RATE" has the meaning assigned to such term in
the Certificate Purchase Agreement.
"ALTERNATE BASE RATE" shall mean a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(i) the rate of interest announced publicly by the Reference
Bank in New York, New York, from time to time as the Reference
Bank's base rate; or
(ii) 0.50% per annum above the latest three-week moving
average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United
States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such day is not a
Banking Day on the next succeeding Banking Day) for the three-week
period ending on the previous Friday by the Reference Bank on the
basis of such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New York in Federal
Reserve Statistical Release H.15(519) or, if such publication shall
be suspended or terminated, on the basis of quotations for the
latest three-week average of secondary market morning offering rates
received by the Reference Bank from three New York certificate of
deposit dealers of recognized standing selected by the Reference
Bank, in either case adjusted to the nearest 1/4 of one percent or,
if there is no nearest 1/4 of one percent, to the next higher 1/4 of
one percent; or
(iii) 0.50% per annum above the Federal Funds Rate.
"AMORTIZATION DATE" shall mean September 30, 2000.
"ASSIGNEE RATE" shall mean an interest rate per annum equal to the
Adjusted Eurodollar Rate PLUS 0.50%; PROVIDED, HOWEVER, that (i) if it shall
become unlawful for the Reference Bank to obtain funds in the London interbank
market in order to purchase, fund or maintain any Increase hereunder, or
deposits in dollars (in the applicable amounts) are not being offered by the
Reference Bank in the London interbank market, then the "Assignee Rate" shall
be the Alternate Base Rate in effect from time to time; (ii) if the date of an
Increase requested under the Certificate Purchase Agreement is not the last
day of an Interest Period, the "Assignee Rate" applicable to the portion of
the Invested Amount consisting of such Increase shall be the Alternate Base
Rate in effect from time to time until the end of the then applicable Interest
Period; and (iii) following the occurrence and during the continuation of an
Early Amortization Period, the "Assignee Rate" shall be the applicable
interest rate per annum determined pursuant to provisions set forth above plus
1.0% per annum.
"BANKING DAY" shall have the meaning assigned to such term in the
Agreement; PROVIDED, HOWEVER, that if this definition of "Banking Day" is
utilized in connection with the Adjusted Eurodollar Rate (as set forth in the
Certificate Purchase Agreement), "Banking Day" shall mean any day other than a
Saturday or Sunday on which dealings are carried out in the London interbank
market and banks are open for business in London and are not required or
authorized to close in New York, New York.
"BREAKAGE COSTS" shall mean, for each Interest Period during which
the Invested Amount is reduced, the amount, if any, by which (i) the
additional interest at the Certificate Rate (calculated without taking into
account any Breakage Costs), which would have accrued on the reduction of the
Invested Amount or, with respect to each Liquidity Provider, its pro rata
portion of such reduction of the Invested Amount during such Interest Period
(as so computed) if such reduction had remained as Invested Amount through the
last day of the Interest Period exceeds (ii) the income, if any, received by
CRC or a Liquidity Provider funding such Invested Amount or its pro rata
portion of such Invested Amount from CRC's or such Liquidity Provider's
investing the proceeds of such reductions of Invested Amount.
"BUSINESS DAY" shall mean a Banking Day other than a day on which
the corporate chief executive office of Nine West is closed for business
pursuant to a regularly scheduled closing date for Nine West, which closing
date is notified in writing to the Program Agent no later than 60 days prior
to the occurrence thereof.
"CAPITALIZED INTEREST" means the principal amount of any CP Notes
issued or other funding obtained by CRC at any time to pay any interest or
discount on (i) CP Notes or (ii) other funding of CRC allocated to the funding
or maintenance of the Invested Amount.
"CERTIFICATE PURCHASE AGREEMENT" shall mean the Amended and Restated
Series 1995-1 Certificate Purchase Agreement, dated as of July 31, 1998, among
the Transferor, as seller, CRC, as purchaser, the financial institutions
parties thereto as Liquidity Providers, the Program Agent and the Trustee, on
behalf of the Trust.
"CERTIFICATE RATE" shall mean, with respect to any Interest Period
and the related Collection Period (a) unless the Program Agent notifies the
Transferor and the Servicer that the Invested Amount, or a portion thereof,
will not be funded by the issuance of CP Notes, the CP Rate; or (b) to the
extent the Program Agent has provided notice to the Transferor and the
Servicer that funding with respect to the Series 1995-1 Certificates is not
being provided by the issuance of CP Notes, a per annum rate equal to the
Assignee Rate.
"CLOSING DATE" shall mean December 29, 1995.
"COLLECTION PERIOD" shall mean, with respect to any Distribution
Date, the Accounting Period (or, in the case of the Accounting Period in which
the Closing Date occurs, the portion of such Accounting Period following the
Closing Date) immediately preceding the Accounting Period in which such
Distribution Date occurs.
"CONCENTRATION LIMIT" shall mean, with respect to the following
types of Receivables and the Series 1995-1 Certificate, the amounts set forth
as follows: (a) Receivables of any single Obligor having an indebtedness
rating of at least "A-1" by Standard & Poor's or its equivalent, 100% of the
Loss and Dilution Reserve; (b) Receivables of any single Obligor having an
indebtedness rating of below "A-1" or its equivalent, but at least "A-2" by
Standard & Poor's or its equivalent, 50% of the Loss and Dilution Reserve; (c)
Receivables of any single Obligor having an indebtedness rating of below "A-2"
or its equivalent, but at least "A-3" by Standard & Poor's or its equivalent,
the lesser of (i) 10% of the Invested Amount and (ii) 50% of the Loss and
Dilution Reserve; and (d) Receivables of any other single Obligor, the lesser
of (i) 5% of the Invested Amount and (ii) 25% of the Loss and Dilution
Reserve; PROVIDED, HOWEVER, that Receivables of Federated Department Stores,
Inc., together with any of its "Affiliates" (as such term is defined in the
next succeeding sentence) shall have a "Concentration Limit" of the greater of
(x) 15.0% of the aggregate Outstanding Balance of Eligible Receivables, and
(y) 50% of the Loss and Dilution Reserve. For the purposes of this defined
term "Concentration Limit", each reference herein to a "single Obligor" shall
include all other Obligors which are "Affiliates" of such Obligor, treating
each reference in the definition of the term "Affiliates" to 5% as if it were,
instead, a reference to 50%.
"CP NOTE" shall mean any commercial paper note issued by CRC.
"CP RATE" shall mean, with respect to CRC for each Interest Period,
the per annum rate equivalent to the weighted average of the per annum rates
paid or payable by CRC from time to time as interest on or otherwise with
respect to those CP Notes issued by CRC that are allocated, in whole or in
part, by CRC to fund the purchase or maintenance of the Invested Amount during
such Interest Period, as determined by CRC and reported to the Transferor and
the Servicer, which rates shall reflect and give effect to the commissions of
placement agents and dealers with respect to such CP Notes; PROVIDED, HOWEVER,
that if any component of such rate is a discount rate, in calculating the "CP
Rate" for such Interest Period, CRC shall for such component use the rate
resulting from converting such discount rate to an interest-bearing equivalent
rate per annum.
"CRC" shall mean Corporate Receivables Corporation, a corporation
organized and existing under the laws of the State of California, and any
successor or assign of CRC that is an Eligible Assignee and that is a
receivables investment company which in the ordinary course of its business
issues commercial paper or other securities to fund its acquisition and
maintenance of receivables.
"CURE ACCOUNT" shall have the meaning specified in Section 4.01(c).
"DEBT SERVICE AMOUNT" shall mean, as of any Interest Payment Date
relating to a Collection Period, an amount equal to the aggregate amount of
interest with respect to the Invested Amount which has accrued during the
Interest Period relating to such Collection Period and remains unpaid
(including, without limitation, Capitalized Interest arising during such
Interest Period, if any, and any interest thereon). The accrued interest for
the Invested Amount for each Interest Period used in computing the Debt
Service Amount for such Collection Period shall be determined by the Program
Agent based upon the actual number of days in such Interest Period, the
Invested Amount outstanding and the Certificate Rate in effect on each day in
such Interest Period, and a year consisting of 360 days, and the Program Agent
shall give notice thereof to the Transferor and the Servicer at least two
Banking Days prior to the Interest Payment Date relating to such Collection
Period.
"DAILY REPORT" shall mean an Officer's Certificate of the Servicer
substantially in the form of Exhibit E to the Agreement.
"DEFAULT RATIO" shall be, as of any date, equal to the average of
the ratios (each expressed as a percentage) for each of the three most
recently ended Accounting Periods of (i) aggregate Receivables that were 151-
180 days past due at the end of each such Accounting Period plus Receivables
which were charged off as uncollectible during such Accounting Period to (ii)
aggregate Receivables that were acquired by the Trust during the seventh
Accounting Period preceding such date.
"DETERMINATION DATE CERTIFICATE" shall mean, with respect to each
Accounting Period, the certificate prepared by the Servicer, substantially in
the form of Exhibit C hereto.
"DILUTION RATIO" shall mean, as of any date, the average of the
ratios (each expressed as a percentage) for each of the six most recently
ended Accounting Periods of (i) the aggregate Outstanding Balance of
Receivables that were Diluted Receivables at the end of the most recently
ended Accounting Period to (ii) the aggregate Outstanding Balance of all
Receivables acquired by the Trust during the third Accounting Period next
preceding the commencement of such Accounting Period.
"DILUTION VOLATILITY FACTOR" shall mean, as of any date, a
percentage equal to the product of (a) the amount by which (i) the highest
Dilution Ratio during the most recently ended period of 12 Accounting Periods
exceeds (ii) the average of the Dilution Ratios during such period and (b)(i)
the highest Dilution Ratio during such period divided by (ii) the average of
the Dilution Ratios during such period.
"DYNAMIC LOSS AND DILUTION RESERVE PERCENTAGE" shall mean, as of any
date, the sum of (a) the product of (i) 2.0 times (ii) the average Dilution
Ratio during the preceding 12 Accounting Periods times (iii) a fraction the
numerator of which is the total sales for the past three Accounting Periods
and the denominator of which is the aggregate Outstanding Balance of Eligible
Receivables as of the end of the most recently ended Accounting Period, plus
(b) the product of the Dilution Volatility Factor times the fraction specified
in clause (a)(iii) above, plus (c) the product of (i) 2.0 times (ii) the
highest Default Ratio during the preceding 12 Accounting Periods times (iii) a
fraction the numerator of which is the total sales for the past four
Accounting Periods and the denominator of which is the aggregate outstanding
balance of Eligible Receivables as of the end of the most recently ended
Accounting Period times (iv) a fraction the numerator of which is 18 if the
Weighted Average Term is less than 31 days, 19.4 if the Weighted Average Term
is greater than or equal to 31 days but less than 41 days, 20.9 if the
Weighted Average Term is greater than or equal to 41 days but less than 51
days, 22.5 if the Weighted Average Term is greater than or equal to 51 days
but less than 61 days, or 24 if the Weighted Average Term is greater than or
equal to 61 days, and the denominator of which is 18.
"EARLY AMORTIZATION EVENT" shall mean any Trust Early Amortization
Event specified in Section 9.01 of the Agreement, together with any Series
1995-1 Early Amortization Event specified in Section 6.01 of this Series
Supplement.
"EFFECTIVE RESTATEMENT DATE" shall mean the date on which the
conditions precedent specified in SECTION 1.04 shall have been satisfied.
"ELIGIBLE ASSIGNEE" shall mean a Person which certifies to the
Trustee, the Transferor and the Servicer that it (i) is a receivables
investment company which customarily issues commercial paper to fund its
acquisition and maintenance of receivables or a bank, insurance company or
other financial institution, and (ii) has a short-term debt rating or short-
term certificate of deposit rating of at least A-1 from Standard & Poor's or
at least P-1 from Moody's, or, if such Person does not have a short-term debt
rating or short-term certificate of deposit rating, a long-term senior debt
rating of at least A from Standard & Poor's or A2 from Moody's; PROVIDED that
if such Person is an insurance, bonding or surety company which does not have
a certificate of deposit rating or a debt rating, such Person has a claims
paying rating or a surety rating of at least A from Standard & Poor's or A2
from Moody's; PROVIDED, FURTHER, in any case, if such Person is rated by both
Standard & Poor's and Moody's, it must have the prescribed minimum ratings
from both Standard & Poor's and Moody's.
"ESCROW ACCOUNT" shall have the meaning specified in Section
4.01(d).
"ESCROW AMOUNT" shall mean, on any day during an Early Amortization
Period or the Amortization Period, the amount equal to the excess, if any, of
(a) the product of (i) the Series 1995-1 Floating Allocation Percentage (as
calculated on the last day of the Revolving Period) TIMES (ii) Collections
deposited to the Concentration Account on such day, over (b) the product of
(i) the Fixed Allocation Percentage (calculated on the last day of the
Revolving Period) TIMES (ii) Collections deposited to the Concentration
Account on such day.
"ESCROW PAYMENT" shall mean as of any Distribution Date during an
Early Amortization Period or the Amortization Period, to the extent funds are
available therefor in the Escrow Account an amount equal to the sum of (a) the
aggregate Outstanding Balance of Receivables that became Diluted Receivables
or Defaulted Receivables or as to which payment had not been received on the
due date specified on the records of the Servicer (in each case as indicated
on the records of the Servicer and reflected on the Daily Report for such day
and the Determination Date Certificate) since the preceding Distribution Date
(or in the case of the first Distribution Date during such Early Amortization
Period or Amortization Period, Receivables that are Diluted Receivables,
Defaulted Receivables or are past due (as described above) on such first
Distribution Date), PLUS (b) the aggregate principal balance of Receivables
that were Diluted Receivables, Defaulted Receivables or were past due (as
described above) on the preceding Distribution Date and for which funds in the
Escrow Account on such Distribution Date were insufficient to make an Escrow
Payment, PLUS (c) an amount equal to the sum of the amounts payable to the
Series 1995-1 Certificateholder, the Trustee, the Servicer and the Program
Agent pursuant to Section 5.01(b) (other than subclause(ii) of Section
5.01(b)(y)) on such Distribution Date.
"FACILITY FEE" shall have the meaning specified in the Fee Letter.
"FEE LETTER" shall mean that certain amended and restated fee letter
dated as of the date of the Certificate Purchase Agreement between the
Transferor and the Program Agent, as the same may be amended, restated or
modified from time to time in accordance with the terms thereof.
"FIXED ALLOCATION PERCENTAGE" shall mean the fraction, calculated on
the last day of the Revolving Period, the numerator of which is the Series
1995-1 Invested Amount (computed as if reduced by (A) the amount of Cure Funds
held in the Cure Account for Series 1995-1 at such time and (b) the cumulative
amount of funds held at such time in the Concentration Account allocated to
the Series 1995-1 Partial Amortization Amount), and the denominator of which
is the Net Receivables Balance.
"INCREASE" shall mean the amount of each increase in the Invested
Amount funded by the issuance of CP Notes or by the Liquidity Providers and
paid to the Transferor by the Program Agent pursuant to the terms of the
Certificate Purchase Agreement.
"INTEREST PAYMENT DATE" shall mean, with respect to each Interest
Period and the related Collection Period
(a) if the Certificate Rate for such Interest Period is determined
by reference to the CP Rate, the second Banking Day following the last
day of such Interest Period and
(b) if the Certificate Rate for such Interest Period is not
determined by reference to the CP Rate, the last day of such Interest
Period.
"INTEREST PERIOD" shall mean
(a) if the Certificate Rate for such Interest Period is determined
by reference to the CP Rate, initially, the period beginning on the
Closing Date and ending on the last day of the month in which the Closing
Date occurs and, thereafter, shall mean the period beginning on the day
following the last day of the immediately preceding Interest Period and
ending on the last day of the month next succeeding such immediately
preceding Interest Period; and
(b) if the Certificate Rate for such Interest Period is not
determined by reference to the CP Rate, initially, the period beginning
on the Closing Date and ending on the second Banking Day following the
last day of the month in which the Closing Date occurs and, thereafter,
shall mean the period beginning on the day following the last day of the
immediately preceding Interest Period and ending on the second Banking
Day following the last day of the month in which such Interest Period
began.
Notwithstanding the foregoing, each Interest Period to occur during the Early
Amortization Period shall be of a duration selected by the Program Agent.
"INVESTED AMOUNT" shall mean, when used with respect to any date, an
amount equal to (a) $57,426,134.00 [initial Invested Amount on the Closing
Date] plus (b) the aggregate amount of Increases made under the Certificates
after the Closing Date minus (c) the aggregate amount of Series 1995-1
Investor Collections received and distributed to the Series 1995-1
Certificateholders in reduction of the Invested Amount from time to time on or
prior to such date; PROVIDED, HOWEVER, that the "Invested Amount" shall not be
reduced by any amount of Series 1995-1 Investor Collections so received and
distributed if at any time such distribution of such amount of Series 1995-1
Investor Collections is rescinded or must otherwise be returned for any
reason; and PROVIDED, FURTHER, that, on any date of determination, the
Invested Amount shall not exceed the Purchase Limit. For purposes of the
Agreement, the "Invested Amount" hereunder shall be deemed to be the "Class A
Invested Amount" for Series 1995-1.
"LIQUIDITY PROVIDERS" shall mean any liquidity providers specified
in the Certificate Purchase Agreement and any of their successors and assigns
that are Eligible Assignees.
"LOSS AND DILUTION RESERVE PERCENTAGE" shall mean, as of any date,
the greater of (a) the Specified Loss and Dilution Reserve Percentage and (b)
the Dynamic Loss and Dilution Reserve Percentage.
"LOSS TO LIQUIDATION RATIO" shall mean, as of any date, the ratio
(expressed as a percentage) calculated by dividing (a) the aggregate
Outstanding Balance of all Receivables written off as uncollectible in
accordance with the Credit Policy and Procedures Manual by the Servicer during
the Accounting Period then most recently ended by (b) the aggregate amount of
Collections during such Accounting Period.
"MONTHLY TRUST EXPENSE AMOUNT" shall mean, with respect to any
Collection Period, the sum of (a) expenses of the Trustee incurred during such
Collection Period (which expenses shall not exceed $200.00 during any single
calendar year at any time during the Revolving Period), plus (b) the Series
Trustee's Fee, plus (c) the Series Servicing Fee, plus (d) Service Transfer
expenses, if any, incurred during such Collection Period.
"OTHER FEES" shall have the meaning specified in the Fee Letter.
"PROGRAM AGENT" shall mean Citicorp North America, Inc., in its
capacity as agent for CRC and the Liquidity Providers under the Series 1995-1.
"PROGRAM FEE" shall have the meaning specified in the Fee Letter.
"PURCHASE LIMIT" shall mean $132,000,000 or such lesser amount as
may be mutually agreed upon by the Program Agent and the Transferor pursuant
to the Certificate Purchase Agreement.
"PURCHASER FEES" shall mean, with respect to any Collection Period,
the Program Fee for such Collection Period, the Facility Fee for such
Collection Period, the Other Fees for such Collection Period, and all other
fees and expenses payable to any of CRC or the Liquidity Providers and
incurred during such Collection Period, including, without limitation,
increased costs, indemnities and Breakage Costs.
"REFERENCE BANK" shall mean, for purposes of determining the
Alternate Base Rate and the Certificate Rate, Citibank, N.A., a national
banking association, or its successors and assigns.
"REVOLVING PERIOD" shall mean the period beginning on the Closing
Date and terminating on the earliest of (a) the close of business on the
Business Day immediately preceding the Amortization Date and (b) the close of
business on the day on which any Early Amortization Event shall occur.
"SERIES 1995-1 ACCOUNTS" shall have the meaning specified in Section
4.01(e).
"SERIES 1995-1 CERTIFICATEHOLDERS" means the Holder or Holders, from
time to time, of the Series 1995-1 Certificates.
"SERIES 1995-1 CERTIFICATES" shall mean the Amended and Restated
Floating Rate Receivables Backed Certificates, Series 1995-1 issued pursuant
to this Series Supplement.
"SERIES 1995-1 DISCOUNT AMOUNT" shall mean with respect to any
Interest Period and the related Collection Period, an amount equal to the sum
of (a) the sum of (i) the amount of Debt Service Amount accrued on the
Invested Amount payable on the Interest Payment Date for such Interest Period
(the Invested Amount not being reduced by the amount of Cure Funds held in the
Cure Account at such time, or by the cumulative amount of funds held in the
Concentration Account at such time allocated to the Series 1995-1 Partial
Amortization Amount) PLUS (ii) interest accrued on unpaid amounts of the Debt
Service Amount at the applicable rates due and payable on such Interest
Payment Date, PLUS (b) the Monthly Trust Expense Amount for such Collection
Period, PLUS (c) the sum of the Purchaser Fees payable on the Distribution
Date with respect to such Collection Period; PROVIDED, that for purposes of
allocating Collections to the Series 1995-1 Discount Amount pursuant to
SECTION 4.02, the foregoing calculation shall be subject to the following: (A)
if the Certificate Rate is being calculated for an Interest Period by
reference to the CP Rate, the Certificate Rate for such Interest Period shall
be equal to the sum of (x) the Certificate Rate applicable to the immediately
preceding Interest Period and (y) 1.50% (or such other higher rate as may
actually accrue on the outstanding Invested Amount during an Interest Period
and as notified in writing to the Servicer and the Trustee by the Program
Agent), and (B) the portion of the Monthly Trust Expense Amount constituting
expenses of the Trustee shall equal the product of the Series Allocation
Percentage for Series 1995-1 TIMES $5,000. Notwithstanding anything in the
foregoing to the contrary, the "Series 1995-1 Discount Amount" shall be
increased, for all purposes under this Series Supplement, under the Agreement
and under the Certificate Purchase Agreement, to reflect the making of any
Increase to the Invested Amount during any applicable Collection Period.
"SERIES 1995-1 EARLY AMORTIZATION EVENT" shall have the meaning
specified in Section 6.01.
"SERIES 1995-1 FLOATING ALLOCATION PERCENTAGE" shall mean at any
time, a fraction, the numerator of which is the sum of (a) the Invested Amount
(computed as if reduced by (i) the amount of Cure Funds held in the Cure
Account for Series 1995-1 at such time and by (ii) the cumulative amount of
funds held at such time in the Concentration Account allocated to the Series
1995-1 Partial Amortization Amount) plus (b) the Series 1995-1 Yield/Fee
Reserve plus (c) the Series 1995-1 Loss and Dilution Reserve, and as the
denominator, the Net Receivables Balance. The Floating Allocation Percentage
is calculated on each Business Day during the Revolving Period, and during a
Partial Amortization Period, Cure Period or the Amortization Period, remains
fixed at the percentage calculated at the close of business on the last
Business Day prior to such Partial Amortization Period, Cure Period or the
Amortization Period.
"SERIES 1995-1 INVESTOR COLLECTIONS" shall mean, as of any date,
that portion of the Collections deposited to the Concentration Account on such
date equal to the product of (A) the Series 1995-1 Floating Allocation
Percentage on such date and (B) the aggregate amount of such Collections.
"SERIES 1995-1 LOSS AND DILUTION RESERVE" or "LDR" shall mean, as of
any date, an amount equal to:
LDR = (IA + YR) x LDRP
where,
IA = Invested Amount (computed as if reduced by the amount of Cure
Funds held in the Cure Account at such time and the cumulative
amount of funds held in the Concentration Account at such time
allocated to the Series 1995-1 Partial Amortization Amount)
YR = Series 1995-1 Yield/Fee Reserve
LDRP = Loss and Dilution Reserve Percentage
"SERIES 1995-1 PARTIAL AMORTIZATION AMOUNT" shall mean the product
of (i) the Series Allocation Percentage for Series 1995-1 times (ii) the Trust
Partial Amortization Amount.
"SERIES 1995-1 TRUSTEE'S ACCOUNT" shall mean the account established
pursuant to Section 4.01(a) of this Series Supplement.
"SERIES 1995-1 YIELD/FEE RESERVE" shall mean, as of any date, the
product of (a) the Turnover Rate for such date multiplied by (b) the Series
1995-1 Discount Amount with respect to the Collection Period in which such
date occurs; PROVIDED that for the purpose of calculating the Series 1995-1
Yield/Fee Reserve, the Series 1995-1 Discount Amount shall be deemed to
include (a) Trustee's expenses equal to one twelfth the product of the Series
Allocation Percentage for Series 1995-1 times $5,000, and (b) the Series
Servicing Fee calculated on the basis of a rate of 1.00% per annum.
"SERIES SERVICING FEE" shall have the meaning specified in
Section 3.01.
"SERIES TRUSTEE'S FEE" shall mean the product of (a) the Trustee's
Fee and (b) the Series Allocation Percentage with respect to Series 1995-1.
"SPECIFIED LOSS AND DILUTION RESERVE PERCENTAGE" shall mean the sum
of (a) 20.0% plus (b) the product of (i) the average Dilution Ratio during the
preceding 6 Accounting Periods times (ii) a fraction (stated as a percentage)
the numerator of which is the total sales for the past three Accounting
Periods and the denominator of which is the aggregate Outstanding Balance of
Eligible Receivables as of the end of the most recently ended Accounting
Period.
"TERMINATION DATE" shall mean the date of payment in full to all of
the Series 1995-1 Certificateholders of the Invested Amount, all accrued and
unpaid interest thereon and any other amounts due the Series 1995-1
Certificateholders under the Transaction Documents, payment in full to the
Servicer of the Series Servicing Fee, and payment in full to the Trustee of
the Series Trustee's Fee.
"TURNOVER RATE" is, as of any date, the highest average for any of
the six most recently ended Accounting Periods of the average of the fractions
(each stated as a percentage) for the three then most recently-ended
Accounting Periods, the numerator of which is equal to the Net Receivables
Balance as of the end of each such Accounting Period and the denominator of
which is the amount of Receivables acquired by the Trust during each such
Accounting Period.
"UNDIVIDED FRACTIONAL INTEREST" shall mean the undivided fractional
interest in the Invested Amount to which a Holder of a Series 1995-1
Certificate is entitled, as applicable, the numerator being the principal
amount of such Series 1995-1 Certificate held by such Holder at the time of
determination and the denominator being the Invested Amount at such time.
SECTION 1.03. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Series Supplement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) All capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in the Agreement. Each capitalized
term defined herein shall relate only to the Series 1995-1 Certificates and
not to any other Series of Certificates issued by the Trust.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Series Supplement shall refer to this Series
Supplement as a whole and not to any particular provision of this Series
Supplement; references to any Article, Section, Schedule or Exhibit are
references to Articles, Sections, Schedules and Exhibits in or to this Series
Supplement unless otherwise specified; and the term "including" means
"including without limitation".
(d) Whenever the term "including" (whether this term is followed by
the phrase "but not limited to" or "without limitation" or words of similar
effect) is used in this Series Supplement in connection with a listing of
items without a particular classification, that listing will not be
interpreted as a limitation on, or exclusive listing of, the items within that
classification.
(e) In computing periods from a specified date to a later specified
date, when precise times of day are not stated, the words "from" and
"commencing on" (and the like) mean "from and including," and the words "to,"
"until" and "ending on" (and the like) mean "to but excluding."
(f) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. Each gender-
specific term used in this Series Supplement has a comparable meaning whether
used in a masculine, feminine or gender-neutral form.
(g) Notwithstanding anything to the contrary in the Agreement,
Series Supplement, unless there is then outstanding one or more Series, or any
Class of a Series, of Investor Certificates rated in the highest investment
category by Standard & Poor's, no action which would be subject to the Rating
Agency Condition or which would otherwise require Rating Agency consent
pursuant to the terms of the Agreement or this Series Supplement with respect
to one or more Series, or any Class of a Series, of Investor Certificates,
shall be taken unless the Program Agent shall have first consented in writing
to such action; PROVIDED, HOWEVER, that nothing in this PARAGRAPH shall be
deemed to require the consent of the Program Agent to the issuance of any
Series, or any Class of a Series, of Investor Certificates rated in the
highest investment category by Standard & Poor's. As used in this Series
Supplement and in the Agreement with respect to Series 1995-1, "highest
investment category" shall mean AAA.
SECTION 1.04. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
SERIES SUPPLEMENT. The Original 1995-1 Series Supplement shall be amended and
restated hereby, in its entirety, effective upon the occurrence of each of the
following:
(a) receipt by the Trustee and the Program Agent of counterpart
signature copies of this Series Supplement, duly executed by each of the
parties hereto;
(b) receipt by the Trustee and the Program Agent of counterpart
signature copies of each of the Certificate Purchase Agreement and the
Termination Agreement, in each case duly executed by each of the parties
thereto;
(c) receipt by the Trustee and the Program Agent of an Officer's
Certificate in the form set forth in Exhibit D to the Certificate Purchase
Agreement, duly executed by an authorized officer of each of the Transferor
and the Servicer;
(d) receipt by the Program Agent of a Notice of Increase duly
executed by an authorized officer of the Transferor requesting an Increase
under the Certificate Purchase Agreement of $41,500,000.00;
(e) receipt by the Trustee of surrendered originals of each of the
Class A Certificate and the Class B Certificate, in each case marked
"canceled";
(f) due authentication by the Trustee of the original of the
Certificate, duly executed by the Transferor, and receipt by the Program Agent
of the same;
(g) receipt by the Liquidity Providers of all fees and expenses due
and payable on or prior to the Effective Restatement Date under the Fee
Letter;
(h) receipt by the Trustee and the Program Agent of the opinion of
General Counsel to Nine West Group Inc. and the Transferor as to various
matters, including (a) the authorization, due execution and delivery by Nine
West Group Inc., the Transferor and the Servicer of the documents respectively
executed by them in connection with the transactions contemplated to take
place on or prior to the Effective Restatement Date (the "RESTATEMENT
DOCUMENTS") and (b) no conflict with other agreements and documents binding
upon Nine West Group Inc., the Transferor and the Servicer and such other
matters as may be requested by the Trustee and the Program Agent, satisfactory
in form and substance to the Trustee and the Program Agent;
(i) receipt by the Trustee and the Program Agent of the opinion(s)
of counsel to the Transferor, Nine West Group Inc. and the Servicer as to
various matters, including (a) the perfection and priority of the security
interests granted pursuant to the Transaction Documents, satisfactory in form
and substance to the Trustee and the Program Agent and (b) the enforceability
against Nine West Group Inc., the Transferor and the Servicer of the
Restatement Documents respectively executed by them and such other matters as
may be requested by the Trustee and the Program Agent, satisfactory in form
and substance to the Trustee and the Program Agent;
(j) receipt by the Trustee and the Program Agent of the opinion of
counsel to the Transferor, Nine West and the Servicer with regard to non-
consolidation matters, in form and substance satisfactory to the Trustee and
the Program Agent;
(k) receipt by the Program Agent of good standing certificates for
each of the Transferor and the Servicer issued by the Secretaries of State of
the States of Delaware, Missouri and New York;
(l) receipt by the Program Agent of the certificates of
incorporation for each of the Transferor and the Servicer certified by the
Secretary of State of the State of Delaware;
(m) receipt by the Program Agent of a certificate of the Secretary
or Assistant Secretary of the Transferor certifying (i) the names and
signatures of certain officers of the Transferor, (ii) that the copy of the
certificate of incorporation of the Transferor attached thereto is a complete
and correct copy and that such certificate of incorporation has not been
amended, modified or supplemented and is in full force and effect, (iii) that
the copy of the by-laws of the Transferor attached thereto is a complete and
correct copy and that such by-laws have not been amended, modified or
supplemented and are in full force and effect, and (iv) that the copy attached
thereto of certain resolutions of the Transferor's directors, approving and
authorizing, among other things, the execution and delivery of this Series
Supplement and all other agreements, documents and instruments delivered by or
on behalf of the Transferor, is a true and complete copy thereof and that such
resolutions have not been amended, modified or otherwise supplemented and are
in full force and effect as of the date of such certificate; and
(n) receipt by the Program Agent of a certificate of the Secretary
or Assistant Secretary of the Servicer certifying (i) the names and signatures
of certain officers of the Servicer, (ii) that the copy of the certificate of
incorporation of the Servicer attached thereto is a complete and correct copy
and that such certificate of incorporation has not been amended, modified or
supplemented and is in full force and effect, (iii) that the copy of the by-
laws of the Servicer attached thereto is a complete and correct copy and that
such by-laws have not been amended, modified or supplemented and are in full
force and effect, and (iv) that the copy attached thereto of certain
resolutions of the Servicer's directors, approving and authorizing, among
other things, the execution and delivery of this Series Supplement and all
other agreements, documents and instruments delivered by or on behalf of the
Servicer, is a true and complete copy thereof and that such resolutions have
not been amended, modified or otherwise supplemented and are in full force and
effect as of the date of such certificate.
ARTICLE II
ADDITIONAL COVENANTS
SECTION 2.01. COVENANTS OF THE SERVICER. The Servicer hereby
covenants that, until the termination of the Amortization Period:
(a) The Servicer will furnish to the Program Agent, promptly after
delivery to the Trustee, all notices, reports and other information given to
the Trustee under the Agreement other than the Daily Reports required
thereunder.
(b) At any time and from time to time during the Servicer's regular
business hours and at the Servicer's expense, on reasonable prior notice; the
Servicer shall, in response to any reasonable request of the Trustee or the
Program Agent, permit the Trustee or the Program Agent, or their agents or
representatives, (i) to examine and make copies of and abstracts from all
books, records and documents (including, without limitation, computer tapes,
microfiche and disks) in the possession or under the control of the Servicer
relating to the Trust Assets, the Receivables and the related Contracts and
(ii) to visit the offices and properties of the Servicer for the purpose of
examining such materials and to discuss matters relating to the Receivables or
the Servicer's performance hereunder with any of the Responsible Officers of
the Servicer having knowledge thereof; such audits and/or visits may take
place annually, or more frequently if so required at the reasonable discretion
of the Program Agent, or its agents or representatives (which agents in
connection with any audit, shall be Deloitte & Touche, or another Independent
Accounting Firm mutually acceptable to the Servicer and the Program Agent);
PROVIDED, HOWEVER, that prior to the time of any such required audit or visit
by the Program Agent (or its agents or representatives) which is less than
eleven months after the most recent such audit or visit, the Program Agent
will give written notice to the Servicer of its intention to so require such
an audit or visit, and the Servicer shall have a reasonable opportunity, on
the same Business Day on which such notice is given, to respond by telephone
or in writing to any questions identified by the Program Agent (or its agents
or representatives) as giving rise to such intended audit or visit; PROVIDED
FURTHER, HOWEVER, that nothing in the foregoing shall in any way limit the
right of the Program Agent (or its agents or representatives) to require such
an audit or visit, if after receiving the Servicer's response to such
questions, the Program Agent (or its agents or representatives) believes that
such audit or visit is so required in the exercise of its reasonable
discretion. The Servicer agrees that the Program Agent will have the right to
require changes in the scope of the Annual Servicing Report furnished by the
Independent Public Accountants pursuant to Section 3.07 of the Agreement.
(c) The Servicer will deliver or cause to be delivered in
duplicate, to each Series 1995-1 Certificateholder and the Trustee, for so
long as Nine West is the Servicer, copies of each report of Nine West filed
with the Securities and Exchange Commission on Forms 10-K and 10-Q within 95
days after end of each fiscal year, in the case of Forms 10-K, and within 50
days after end of each fiscal quarter in the case of Forms 10-Q.
ARTICLE III
SERVICING FEE
SECTION 3.01. SERVICING COMPENSATION.
The portion of the Servicing Fee allocable to the Series 1995-1
Certificateholders with respect to any Distribution Date (the "SERIES 1995-1
SERVICING FEE") shall be equal to the product of (a) 1.00% per annum and (b)
the Invested Amount.
ARTICLE IV
RIGHTS OF SERIES 1995-1 CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.01. ESTABLISHMENT OF SERIES ACCOUNTS.
(a) The Servicer, for the benefit of the Series 1995-1
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, with an Eligible Institution a segregated trust
account accessible only by the Trustee (the "SERIES 1995-1 TRUSTEE'S
ACCOUNT"), which shall be identified as the "Series 1995-1 Trustee's Account
for the Nine West Trade Receivables Master Trust, Series 1995-1" and shall
bear a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 1995-1 Certificateholders. The Series
1995-1 Trustee's Account initially shall be established at The Bank of New
York.
(b) The Program Agent, for the benefit of CRC and the Liquidity
Providers, shall establish and maintain in its own name, on behalf of CRC and
the Liquidity Providers, with an Eligible Institution a segregated account
accessible only by the Program Agent (the "PROGRAM AGENT'S ACCOUNT"), which
shall be identified as the "Program Agent's Account for the Nine West Trade
Receivables Master Trust, Series 1995-1" and shall bear a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 1995-1 Certificateholders. The Program Agent's Account initially shall
be established at Citibank, N.A.
(c) (i) The Servicer, for the benefit of the Series 1995-1
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, with an Eligible Institution a segregated trust
account accessible only by the Trustee (the "CURE ACCOUNT"), which shall be
identified as the "Cure Account for the Nine West Trade Receivables Master
Trust, Series 1995-1" and shall bear a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 1995-1
Certificateholders.
(ii) At the direction of the Servicer (which may be a standing
direction), funds on deposit in the Cure Account shall be invested by the
Trustee in Eligible Investments selected by the Servicer. All such Eligible
Investments shall be held by the Trustee for the benefit of the Series 1995-1
Certificateholders. On each Distribution Date and on each Interest Payment
Date, all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Cure Account shall be applied as set
forth in SECTION 4.02. Funds on deposit in the Cure Account shall be invested
at the written direction of the Servicer in Eligible Investments that will
mature so that such funds will be available on or before the close of business
on the Business Day next preceding the earlier of (x) the next following
Interest Payment Date, or (y) the next following Distribution Date. Funds
deposited in the Cure Account on a Business Day which immediately precedes an
Interest Payment Date or a Distribution Date upon the maturity of any Eligible
Investments are not required to be invested overnight.
(d) (i) The Servicer, for the benefit of the Series 1995-1
Certificateholders, shall establish and maintain in the name of the Trustee,
on behalf of the Trust, with an Eligible Institution a segregated trust
account accessible only by the Trustee (the "ESCROW ACCOUNT"), which shall be
identified as the "Escrow Account for the Nine West Trade Receivables Master
Trust, Series 1995-1" and shall bear a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 1995-1
Certificateholders.
(ii) At the direction of the Servicer (which may be a standing
direction), funds on deposit in the Escrow Account shall be invested by the
Trustee in Eligible Investments selected by the Servicer. All such Eligible
Investments shall be held by the Trustee for the benefit of the Series 1995-1
Certificateholders. On each Distribution Date and on each Interest Payment
Date, all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Escrow Account shall be applied as set
forth in SECTION 4.02. Funds on deposit in the Escrow Account shall be
invested at the written direction of the Servicer in Eligible Investments that
will mature so that such funds will be available on or before the close of
business on the Business Day next preceding the earlier of (x) the next
following Interest Payment Date, or (y) the next following Distribution Date.
Funds deposited in the Escrow Account on a Business Day which immediately
precedes an Interest Payment Date or a Distribution Date upon the maturity of
any Eligible Investments are not required to be invested overnight.
(e) (i) The Trustee shall possess all right, title and interest in
and to all funds on deposit from time to time in, and all Eligible Investments
credited to, the Series 1995-1 Trustee's Account, the Cure Account and the
Escrow Account (collectively, the "SERIES 1995-1 ACCOUNTS") and in all
proceeds thereof. The Series 1995-1 Accounts shall be under the sole dominion
and control of the Trustee for the benefit of the Series 1995-1
Certificateholders. If, at any time, any of the Series 1995-1 Accounts are
held by an institution other than an Eligible Institution, the Trustee, if it
has actual knowledge that such institution is not an Eligible Institution, (or
the Servicer, at the direction of the Trustee and on its behalf) shall within
five Business Days establish a new Series 1995-1 Account meeting the
conditions specified in paragraph (a),(c) (i) or (d)(i) above, as applicable,
and shall transfer any cash and/or any investments to such new Series 1995-1
Account. Neither the Transferor, the Servicer nor any Person or entity
claiming by, through or under the Transferor, the Servicer or any such Person
or entity shall have any right, title or interest in, or any right to withdraw
any amount from, any Series 1995-1 Account, except as expressly provided
herein. Schedule I identifies each Series 1995-1 Accounts and the Program
Agent's Account by setting forth the account number of each such account, the
account designation of each such account and the name and location of the
institution with which such account has been established. If a substitute
Series 1995-1 Account or Program Agent's Account is established pursuant to
this Section 4.01, the party establishing such substitute Series 1995-1
Account shall promptly provide to the Servicer or the Trustee, as applicable,
an amended Schedule I, setting forth the relevant information for such
substitute Series 1995-1 Account.
(ii) Notwithstanding anything herein to the contrary, the Servicer
shall have the power, revocable by the Trustee, to instruct the Trustee to
make withdrawals and payments from the Series 1995-1 Accounts for the purposes
of carrying out the Servicer's or Trustee's duties hereunder.
(f) Unless the Rating Agency Condition is satisfied, at no time may
greater than 10% of the funds on deposit in any Series 1995-1 Account be
invested in Eligible Investments (other than obligations of the United States
government or agencies the obligations of which are guaranteed by the United
States government) of any single entity or its Affiliates.
(g) Any request by the Servicer to invest funds on deposit in any
Series 1995-1 Account shall be in writing, or by telephone, confirmed promptly
in writing, and shall certify that the requested investment is an Eligible
Investment which matures at or prior to the time required hereby.
SECTION 4.02. SETTLEMENT PROCEDURES.
(a) REVOLVING PERIOD. On each Deposit Date during each Collection
Period during the Revolving Period, unless a Partial Amortization Period or a
Cure Period shall have occurred and be continuing, the Servicer shall instruct
the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York
City time) to, and the Trustee shall, at such time and in the following order:
(i) allocate Collections received since receipt of the last such
Daily Report and held in the Concentration Account on such day, based on
the Series 1995-1 Floating Allocation Percentage on such day and the
Daily Report, either as Series 1995-1 Investor Collections, Collections
allocable to another Series or Transferor Collections;
(ii) out of such Series 1995-1 Investor Collections, allocate to,
and hold in the Concentration Account, in trust for the Series 1995-1
Certificateholders, the Trustee and the Servicer, an amount equal to the
Series 1995-1 Discount Amount for such Collection Period to the extent
such amount has not been previously so allocated by the Servicer;
(iii) deposit the remainder of such Series 1995-1 Investor
Collections to the Transferor's Account to be invested by the Transferor
in Receivables; PROVIDED that if immediately following any such deposit
such Deposit Date would be a Pool Non-compliance Date, the Trustee shall
retain all such remaining Series 1995-1 Investor Collections in the
Concentration Account to be applied pursuant to Section 4.02(b)(iii); and
(iv) deposit to the Transferor's Account the Transferor
Collections.
On the Business Day immediately prior to (A) each Interest Payment
Date, the Servicer shall direct the Trustee to deposit to the Series 1995-1
Trustee's Account for the account of the Series 1995-1 Certificateholders that
portion of the Series 1995-1 Discount Amount allocated and held in trust as
described in clause (ii) above equal to the Debt Service Amount due and
payable on such Interest Payment Date; (B) each Distribution Date, the
Servicer shall direct the Trustee to deposit to the Series 1995-1 Trustee's
Account for the account of the Series 1995-1 Certificateholders, the Liquidity
Providers, the Trustee and the Servicer, that portion of the Series 1995-1
Discount Amount allocated and held in trust as described in clause (ii) above
equal to the sum of (1) the Monthly Trust Expense Amount and (2) the sum of
the Purchaser Fees then due and owing; PROVIDED, HOWEVER, that the Servicer
shall instruct the Trustee to deposit such Trustee's expenses only to the
extent of expenses actually incurred by the Trustee (as certified to the
Servicer in writing by the Trustee) during the Collection Period relating to
such Distribution Date or remaining unpaid with respect to any prior
Collection Period. The Daily Report delivered by the Servicer to the Trustee
on the first day of each Collection Period shall set forth the Series 1995-1
Discount Amount for such Collection Period.
(b) PARTIAL AMORTIZATION/CURE PERIOD. On each Deposit Date during
each Collection Period if and so long as a Partial Amortization Period or a
Cure Period shall have occurred and be continuing, the Servicer shall instruct
the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York
City time) to, and the Trustee shall, at that time and in the following order:
(i) allocate Collections received since receipt of the last such
Daily Report and held in the Concentration Account on such day, based on
the Series 1995-1 Floating Allocation Percentage for such Partial
Amortization Period or Cure Period and the Daily Report, either as Series
1995-1 Investor Collections, Collections allocable to another Series or
Transferor Collections;
(ii) out of such Series 1995-1 Investor Collections, allocate to,
and hold in the Concentration Account, in trust for the Series 1995-1
Certificateholders, the Trustee and the Servicer, an amount equal to the
Series 1995-1 Discount Amount for such Collection Period to the extent
such amount has not been previously so allocated by the Servicer;
(iii) (A) in the case of a Partial Amortization Period, set aside
and hold in the Concentration Account, in trust for the Series 1995-1
Certificateholders, the Trustee and the Servicer, such Series 1995-1
Investor Collections until the amount so held equals the Series 1995-1
Partial Amortization Amount and (B) in the case of a Cure Period, deposit
such Series 1995-1 Investor Collections to the Cure Account in an amount
sufficient (together with the amounts on deposit in the Cure Accounts of
all outstanding Series) to make the Net Receivables Balance equal or
exceed the Required Net Receivables Balance;
(iv) deposit the remainder of such Series 1995-1 Investor
Collections to the Transferor's Account to be invested by the Transferor
in Receivables; provided that if immediately following any such deposit
such Deposit Date would be a Pool Non-compliance Date, the Trustee shall
retain all such remaining Series 1995-1 Investor Collections in the
Concentration Account to be applied pursuant to Section 4.02(b)(iii);
(v) deposit to the Transferor's Account the Transferor Collections.
On the Business Day immediately following the day on which any
Partial Amortization Period ends, the Servicer shall deposit to the Series
1995-1 Trustee's Account all amounts set aside as described in clause
(iii)(A) of this Section 4.02(b) PROVIDED, HOWEVER, that if such following
Business Day is a Distribution Date, an Interest Payment Date or a date on
which the Transferor elects to reduce the Invested Amount pursuant to SECTION
4.02(d), the Servicer shall also deposit to the Series 1995-1 Trustee's
Account, from funds held in the Concentration Account as Series 1995-1
Discount Amount pursuant to clause (ii) of SECTION 4.02(a) and clause (ii) of
this SECTION 4.02(b), the funds necessary to be distributed on such date as
interest, Breakage Costs (if any) or other amounts due and payable from the
Series 1995-1 Discount Amount.
On the Business Day immediately prior to (A) each Interest Payment
Date during a Partial Amortization Period or Cure Period, the Servicer shall
direct the Trustee to deposit to the Series 1995-1 Trustee's Account for the
account of the Series 1995-1 Certificateholders that portion of the Series
1995-1 Discount Amount allocated and held in trust as described in clause (ii)
above equal to the Debt Service Amount due and payable on such Interest
Payment Date; and (B) each Distribution Date during a Partial Amortization
Period or Cure Period, the Servicer shall direct the Trustee to deposit to the
Series 1995-1 Trustee's Account for the account of the Series 1995-1
Certificateholders, the Liquidity Providers, the Trustee and the Servicer,
that portion of the Series 1995-1 Discount Amount allocated and held in trust
as described in clause (ii) above equal to the sum of (1) the Monthly Trust
Expense Amount and (2) the sum of the Purchaser Fees then due and owing;
PROVIDED, HOWEVER, that the Servicer shall instruct the Trustee to deposit
such Trustee's expenses only to the extent of expenses actually incurred by
the Trustee (as certified to the Servicer in writing by the Trustee) during
the Collection Period relating to such Distribution Date or remaining unpaid
with respect to any prior Collection Period.
All funds held in the Concentration Account during a Partial
Amortization Period as all or a portion of the Series 1995-1 Partial
Amortization Amount shall remain in the Concentration Account, without
reduction, until such funds are distributed to the Series 1995-1
Certificateholders as provided in Section 5.01(d).
(c) EARLY AMORTIZATION/AMORTIZATION PERIOD. On each Deposit Date
during each Collection Period during an Early Amortization Period or the
Amortization Period, the Servicer shall instruct the Trustee by a Daily Report
delivered to the Trustee by 12:00 noon (New York City time) to, and the
Trustee shall, at that time and in the following order:
(i) allocate Collections received since receipt of the last such
Daily Report and held in the Concentration Account, based on the Fixed
Allocation Percentage for such Early Amortization Period or the
Amortization Period and the Daily Report, either as Series 1995-1
Investor Collections, Collections allocable to another Series or as
Transferor Collections;
(ii) set aside and hold in the Concentration Account in trust for
the Series 1995-1 Certificateholders, the Trustee and the Servicer, such
Series 1995-1 Investor Collections;
(iii) deposit to the Escrow Account, from the Transferor
Collections, the Escrow Amount, if any; and
(iv) deposit to the Transferor's Account any Transferor
Collections.
The Trustee shall deposit to the Series 1995-1 Trustee's Account for
the account of the Series 1995-1 Certificateholders, the Liquidity Providers,
the Trustee and the Servicer (A) all amounts set aside as described in clause
(ii) of this SECTION 4.02(c), (B) all amounts then on deposit in the Cure
Account, (C) the amount of funds held in the Concentration Account
representing all or a portion of the Series 1995-1 Partial Amortization
Amount, and (D) the Escrow Payment, if any, from funds on deposit in the
Escrow Account, as follows:
(x) on the Business Day immediately prior to each Interest Payment
Date, in an aggregate amount not to exceed (1) the Debt Service Amount
for the related Interest Period, and (2) the Invested Amount; and
(y) on the Business Day immediately prior to each Distribution Date,
in an aggregate amount not to exceed the sum of (1) the sum of the
Purchaser Fees payable on such Distribution Date, (2) the Monthly Trust
Expense Amount payable on such Distribution Date, and (3) the aggregate
of all other amounts then owed to the Holders of the Series 1995-1
Certificates hereunder (other than the amounts described in clause (x)
above).
(d) REDUCTIONS TO INVESTED AMOUNT - REVOLVING PERIOD. On any
Business Day during the Revolving Period, unless a Partial Amortization Period
or a Cure Period shall have occurred and be continuing, the Transferor may
(i) instruct the Servicer to direct the Trustee (as set forth in the Daily
Report) to deposit to the Series 1995-1 Trustee's Account all or a portion of
(A) the Collections otherwise to be deposited into the Transferor's Account
pursuant to Sections 4.02(a)(iii) and (iv) and (B) the Series 1995-1 Discount
Amount held in the Concentration Account pursuant to Section 4.02(a)(ii), and
(ii) deposit to the Series 1995-1 Trustee's Account its own funds, in each
case for distribution on the next Business Day pursuant to Section 5.01(c) to
the relevant Series 1995-1 Certificateholders, to repay all or a portion of
the Invested Amount and related Debt Service Amount, if any, and Breakage
Costs (in the event any such payment takes place on any day other than a
related Interest Payment Date) and any other amounts due the 1995-1
Certificateholders under the Transaction Documents.
(e) REDUCTIONS TO INVESTED AMOUNT - AMORTIZATION PERIOD. On the
Business Day prior to any Distribution Date during an Early Amortization
Period or the Amortization Period, the Transferor may deposit to the Series
1995-1 Trustee's Account its own funds in an amount sufficient, when added to
the amounts deposited to the Series 1995-1 Trustee's Account pursuant to
Section 4.02(c), to reduce the Invested Amount and to pay the Debt Service
Amount, if any, any Breakage Costs and any other amounts due the Series 1995-1
Certificateholders under the Transaction Documents. Upon the termination of
such Early Amortization Period or the Amortization Period, the Servicer shall
instruct the Trustee to, and the Trustee shall, withdraw from the Cure Account
all remaining amounts then on deposit therein and deposit such funds to the
Series 1995-1 Trustee's Account for use by the Trustee in making the
distribution required under Section 5.01(e).
(f) WITHDRAWAL OF CURE FUNDS. On any Business Day during the
Revolving Period, the Transferor may instruct the Trustee by an Officer's
Certificate (which may be a standing instruction) delivered to the Trustee by
12:00 noon (New York City time) to, and the Trustee shall, deposit to the
Transferor's Account all amounts then on deposit in the Cure Account; PROVIDED
that the Transferor shall have delivered to the Trustee at the time of such
request an Officer's Certificate (in substantially the form of Exhibit D
hereto) stating that, after taking account of the requested withdrawal, the
Net Receivables Balance on such day is equal to or greater than the Required
Net Receivables Balance and setting forth the calculation supporting such
statement.
(g) DETERMINATION OF RATES. At any time that the Certificate Rate
is required to be determined hereunder, for any reason whatsoever, the
Servicer shall give the Trustee written notice of such rate at such time, and
to the extent that the Servicer shall not have sufficient information in order
to calculate such rate at such time, the Servicer shall obtain such additional
information from the Program Agent.
SECTION 4.03. NEW ISSUANCES. In addition to the conditions to the
issuance of a new Series of Investor Certificates described in Section 6.08(b)
of the Agreement, on or before the Series Issuance Date relating to any new
Series, each Rating Agency shall have notified the Series 1995-1
Certificateholders, the Servicer and the Trustee in writing that the issuance
of such new Series of Investor Certificates will not in and of itself result
in a reduction or withdrawal of the rating of any outstanding commercial paper
issued by any Series 1995-1 Certificateholder with respect to which it is a
Rating Agency.
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
SERIES 1995-1 CERTIFICATEHOLDERS
SECTION 5.01. DISTRIBUTIONS.
(a) REVOLVING PERIOD. (x) During the Revolving Period, on the
Distribution Date with respect to each Collection Period, the Trustee shall
distribute the funds on deposit in the Series 1995-1 Trustee's Account on such
Distribution Date, in the following order of priority, in accordance with the
Servicer's Determination Date Certificate:
(i) to the Trustee as the accrued and unpaid Series Trustee's Fee
and expenses of the Trustee, not in excess of the product of (A) $5,000
and (B) the Series Allocation Percentage for Series 1995-1 (PROVIDED,
HOWEVER, that (A) the distribution described in this clause (i) shall
take place only on the last Distribution Date to occur in each calendar
year, and on the earlier to occur of the termination of the Trust or the
effectiveness of the resignation or removal of a Trustee in accordance
with the provisions of Section 11.07 of the Agreement, and (B) in the
case of any Distribution Date other than such last Distribution Date to
occur in a calendar year, such amount of accrued and unpaid Series
Trustee's Fee and expenses so accrued during such Collection Period shall
be set aside by the Trustee in the Series 1995-1 Trustee's Account, and
shall not be available for application under any of the following clauses
of this SECTION 5.01(a));
(ii) to the Servicer (if the Servicer is other than Nine West Group
Inc.) as the accrued and unpaid Series Servicing Fee and any Service
Transfer expenses incurred by a Successor Servicer which have not been
paid by the initial Servicer;
(iii) unless otherwise instructed by the Program Agent, to the
Program Agent's Account, for payment of the Purchaser Fees (including,
without limitation, Breakage Costs);
(iv) to the Servicer (if the Servicer is Nine West Group Inc.) as
the accrued and unpaid Series Servicing Fee; and
(v) after the payment in full of the amounts specified in clauses
(i) through (iv) above, to the Transferor.
(y) During the Revolving Period, on each Interest Payment Date
with respect to each Collection Period, the Trustee shall distribute the funds
on deposit in the Series 1995-1 Trustee's Account on such Interest Payment
Date, to the Program Agent's Account, to be applied in the following order of
priority:
(i) for distribution to the Series 1995-1 Certificateholders,
ratably in accordance with their respective Undivided Fractional
Interests, of the Debt Service Amount; and
(ii) after the payment in full of the amounts specified in clause
(i) and (ii) above, to the Transferor;
PROVIDED, HOWEVER, to the extent there are insufficient funds on deposit in
the Series 1995-1 Trustee's Account to fully pay the amounts described in this
SECTION 5.01(a), the funds on deposit in the Series 1995-1 Trustee's Account
shall be distributed among the amounts described in this SECTION 5.01(a) in
the following order of priority: FIRST, to the amounts described in clause
(x)(i); SECOND, to the amounts described in clause (x)(ii); THIRD, to the
amounts described in clause (y)(i); FOURTH, to the amounts described in clause
(x)(iii); FIFTH, to the amounts described in clause (x)(iv); and SIXTH, to the
Transferor as described in clauses (x)(v) and (y)(ii).
(b) EARLY AMORTIZATION/AMORTIZATION PERIOD. (x) On each
Distribution Date during an Early Amortization Period or the Amortization
Period, the Trustee shall distribute the funds on deposit in the Series 1995-1
Trustee's Account on such Distribution Date, in the following order of
priority, in accordance with the Servicer's Determination Date Certificate:
(i) to the Trustee as the accrued and unpaid Series Trustee's Fee
and expenses of the Trustee, not in excess of the product of (A) $5,000
and (B) the Series Allocation Percentage for Series 1995-1 (PROVIDED,
HOWEVER, that (A) the distribution described in this clause (i) shall
take place only on the last Distribution Date to occur in each calendar
year, and on the earlier to occur of the termination of the Trust or the
effectiveness of the resignation or removal of a Trustee in accordance
with the provisions of Section 11.07 of the Agreement, and (B) in the
case of any Distribution Date other than such last Distribution Date to
occur in a calendar year, such amount of accrued and unpaid Series
Trustee's Fee and expenses so accrued during such Collection Period shall
be set aside by the Trustee in the Series 1995-1 Trustee's Account, and
shall not be available for application under any of the following clauses
of this SECTION 5.01(b));
(ii) to the Servicer (if the Servicer is other than Nine West Group
Inc.) as the accrued and unpaid Series Servicing Fee and, if a default in
payment to any Series of Certificateholders shall have occurred, Service
Transfer expenses incurred by a Successor Servicer which have not been
paid by the initial Servicer;
(iii) unless otherwise instructed by the Program Agent, to the
Program Agent's Account, for payment of the Purchaser Fees (including,
without limitation, Breakage Costs);
(iv) to the Trustee as Trustee's expenses in excess of the product
of (A) $5,000 and (B) the Series Allocation Percentage for Series 1995-1;
(v) to the Servicer (if the Servicer is Nine West Group Inc.) as
the accrued and unpaid Series Servicing Fee for such Collection Period;
and
(vi) after the payment in full of the amounts specified in clauses
(i) through (v) above, to the Transferor.
(y) On each Interest Payment Date during an Early Amortization
Period or the Amortization Period, the Trustee shall distribute the funds on
deposit in the Series 1995-1 Trustee's Account on such Interest Payment Date,
to the Program Agent's Account, to be applied in the following order of
priority:
(i) for distribution to the Series 1995-1 Certificateholders,
ratably in accordance with their respective Undivided Fractional
Interests, of the Debt Service Amount and any accrued and unpaid Debt
Service Amount;
(ii) to the Series 1995-1 Certificateholders, ratably in accordance
with their respective Undivided Fractional Interests, in reduction of the
Invested Amount until the Invested Amount is reduced to zero, and any
other amounts due the Certificateholders under the Transaction Documents;
and
(iii) after the payment in full of the amounts specified in clauses
(i) above, to the Transferor;
PROVIDED, HOWEVER, to the extent there are insufficient funds on deposit in
the Series 1995-1 Trustee's Account to fully pay the amounts described in this
SECTION 5.01(b), the funds on deposit in the Series 1995-1 Trustee's Account
shall be distributed among the amounts described in this SECTION 5.01(b) in
the following order of priority: FIRST, to the amounts described in clause
(x)(i); SECOND, to the amounts described in clause (x)(ii); THIRD, to the
amounts described in clause (y)(i); FOURTH, to the amounts described in clause
(x)(iii), but only to the extent of the Program Fee and the Facility Fee;
FIFTH, to the amounts described in clause (y)(ii); SIXTH, to the amounts
described in clause (x)(iii) other than the Program Fee, and the Facility Fee;
SEVENTH, to the amounts described in clause (x)(iv); EIGHTH, to the amounts
described in clause (x)(v); and NINTH, to the Transferor as described in
clauses (x)(vi) and (y)(iii).
(c) In accordance with the provisions of Section 4.02(d), the
Trustee shall distribute the funds on deposit in the Series 1995-1 Trustee's
Account to the Series 1995-1 Certificateholders, in reduction of the Invested
Amount and payment of any related Debt Service Amount, if any, any Breakage
Costs and all other amounts due the Series 1995-1 Certificateholders under the
Transaction Documents.
(d) In accordance with the provisions of the last paragraph in
SECTION 4.02(b), the Trustee shall distribute the amount of funds representing
the Trust Partial Amortization Amount that have been deposited to the Series
1995-1 Trustee's Account to the Series 1995-1 Certificateholders, in reduction
of the Invested Amount and payment of the Debt Service Amount, if any, any
Breakage Costs and all other amounts due the Series 1995-1 Certificateholders
under the Transaction Documents.
(e) Upon payment in full to all of the Series 1995-1
Certificateholders of the Invested Amount, all accrued and unpaid interest
thereon and all other amounts due the Series 1995-1 Certificateholders under
the Transaction Documents, payment in full to the Servicer of the Series
Servicing Fee, and payment in full to the Trustee of the Series Trustee's Fee,
and provided that no amounts are then due and unpaid to the Holders of any
other outstanding Series, all amounts remaining on deposit in the Series 1995-
1 Trustee's Account shall be distributed by the Trustee to the Holder of the
Transferor Certificate, and all amounts, if any, remaining in the Collection
Accounts, the Concentration Account, the Cure Account and the Escrow Account
shall be distributed by the Trustee to the Holder of the Transferor
Certificate; PROVIDED, HOWEVER, that if at any time after the payment that
would have otherwise resulted in such payment in full, such payment is
rescinded or must otherwise be returned for any reason, effective upon such
rescission or return such payment in full shall automatically be deemed, as
between the Series 1995-1 Certificateholders and the Transferor, never to have
occurred, and the Transferor shall be required, to the extent it received any
amounts under this Section 5.01, to remit to the Series 1995-1
Certificateholders an amount equal to the rescinded or returned payment.
(f) Except as provided in Section 12.02 of the Agreement with
respect to a final distribution, distributions to the Series 1995-1
Certificateholders hereunder shall be made by wire transfer to the Program
Agent's Account, unless otherwise instructed by the Program Agent, at such
account as may be designated in writing, received by the Trustee on or prior
to the relevant Record Date, by each Series 1995-1 Certificateholder without
presentation or surrender of any Certificate or the making of any notation
thereon. In the absence of such timely wire transfer instructions, payment
will be made by check to the addresses of record of the Series 1995-1
Certificateholders. Any payments due the Series 1995-1 Certificateholders and
received to the credit of the Program Agent's Account shall be considered to
have been received by the Series 1995-1 Certificateholders for the purposes of
the Agreement, this Series Supplement and the Series 1995-1 Certificates.
SECTION 5.02. ANNUAL CERTIFICATEHOLDERS' STATEMENT. On or before
January 31 of each calendar year, beginning with January 31, 1997, the
Servicer shall provide to the Trustee and the Trustee shall forward or cause
to be forwarded to each Person who at any time during the preceding fiscal
year was a Series 1995-1 Certificateholder, a statement prepared by the
Servicer containing the information which is required to be contained in the
Determination Date Certificates provided to Certificateholders pursuant to
Section 3.05(b) of the Agreement, aggregated for such fiscal year or the
applicable portion thereof during which such Person was a Certificateholder,
together with other information as is required to be provided under the
Internal Revenue Code and such other customary information as is necessary to
enable the Certificateholders to prepare their tax returns (all as determined
by the Servicer). The obligation of the Servicer to provide such other
information and such other customary information shall be deemed to have been
satisfied to the extent that information substantially comparable to such
other information and such other customary information shall be provided by
the Trustee pursuant to any requirements of the Internal Revenue Code as from
time to time in effect.
ARTICLE VI
SERIES 1995-1 EARLY AMORTIZATION EVENTS
SECTION 6.01. SERIES 1995-1 EARLY AMORTIZATION EVENTS. If a Trust
Early Amortization Event or any one of the following events shall occur (each,
an "EARLY AMORTIZATION EVENT")
(a) the Default Ratio shall exceed 6.0%; or
(b) the average of the Dilution Ratios for the six next preceding
Collection Periods shall exceed 15.0%; or
(c) the average of the Loss to Liquidation Ratios for the three
next preceding Collection Periods shall exceed 1.0% or
(d) the senior debt rating of the initial Servicer is rated below
B- or its equivalent by either Standard & Poor's or Moody's, or, if not rated
by Standard & Poor's or Moody's, such senior debt is deemed rated below B-
based upon the Citibank, N.A. internal debt rating model; or
(e) The Transferor shall fail to perform any of its obligations
under the Certificate Purchase Agreement; or
(f) Either of the Transferor or the Servicer (provided that the
Servicer is the Transferor, Nine West or an Affiliate of either thereof) shall
fail to make any payment, transfer or deposit required to be paid, effected or
made by it under the Agreement or this Series Supplement (including pursuant
to Section 3.04(b) of the Agreement), under any other Supplement or under any
agreement, documentation or report delivered in connection herewith or
therewith; or
(g) The Transferor shall fail at any time to maintain net worth
(exclusive of its interests in the Trust or similar arrangements) in an amount
equal to or exceeding the greater of (i) $5,000,000 and (ii) an amount equal
to 5.0% of the excess of (x) the Outstanding Balance of Eligible Receivables
at such time over (y) the aggregate amount of the Invested Amount at such time
and the Invested Amount at such time of any Series (or Class thereof) in
respect of which a Tax Opinion in the form described in clause (d)(ii) of the
definition of "Tax Opinion" in the Agreement has been delivered to the
Trustee;
then, either the Trustee or the Program Agent (unless otherwise directed by a
Majority in Interest of Series 1995-1 Certificateholders) or a Majority in
Interest of Series 1995-1 Certificateholders, by notice then given in writing
to the Transferor and the Servicer (and to the Trustee if given by such Series
1995-1 Certificateholders), may declare (PROVIDED that such Early Amortization
Event shall not have been remedied) that an Early Amortization Event has
occurred as of the date of such notice, and, in the case of any Early
Amortization Event, additional Receivables will not be transferred to the
Trust.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. RATIFICATION OF AGREEMENT. As supplemented by this
Series Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Series Supplement shall be read,
taken and construed as one and the same instrument.
SECTION 7.02. COUNTERPARTS. This Series Supplement 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.
SECTION 7.03. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS.
(a) GOVERNING LAW. THIS SERIES SUPPLEMENT, INCLUDING THE RIGHTS
AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) JURISDICTION. Each of the parties hereto hereby irrevocably
and unconditionally submits to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Series Supplement, and each of
the parties hereto hereby irrevocably and unconditionally (i) agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, such federal court
and (ii) waives the defense of an inconvenient forum. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
(c) CONSENT TO SERVICE OF PROCESS. Each party to this Series
Supplement irrevocably consents to service of process by personal delivery,
certified mail, postage prepaid or overnight courier. Nothing in this Series
Supplement will affect the right of any party to this Series Supplement to
serve process in any other manner permitted by law.
SECTION 7.04. APPOINTMENT OF SUCCESSOR SERVICER. Notwithstanding
anything to the contrary in Section 10.02 of the Agreement, the Trustee's
appointment of a Successor Servicer shall be subject to the consent of a
Majority in Interest of the Series 1995-1 Certificateholders.
SECTION 7.05. THE TRUSTEE. The Trustee shall not be responsible in
any manner whatsoever for or with respect to the validity or sufficiency of
this Series Supplement, or for or with respect to the recitals contained
herein, all of which recitals are made solely by the Transferor and the
Servicer.
SECTION 7.06. ASSIGNMENT BY CRC AND THE LIQUIDITY PROVIDERS. (a)
Subject to the limitations on transfer contained in the Agreement and this
Series Supplement, at any time and from time to time, CRC or any Liquidity
Provider may, by notice and delivery to the Program Agent of a fully executed
assignment and assumption agreement (in sufficient counterparts for each party
hereto), assign to any Person all or any portion of its rights and obligations
hereunder; PROVIDED that such Person is an Eligible Assignee. The Program
Agent shall, promptly upon its receipt of any such notice and assignment and
assumption agreement, notify the Transferor, the Servicer and the Trustee of
such assignment. The Transferor and the Servicer agree to execute or obtain
such other documentation as may be reasonably requested by CRC or any
Liquidity Provider in order to effectuate such assignment. The assignee
shall, upon the effectiveness of such assignment and assumption agreement and
delivery thereof and of such other requested documentation to the Program
Agent, become entitled to the benefits hereof and subject to the obligations
of CRC or such Liquidity Provider hereunder, as the case may be.
(b) Subject to the limitations on transfer contained in the
Agreement and this Series Supplement, at any time and from time to time, CRC
may assign to any Liquidity Provider, and any Liquidity Provider may assign to
any other Liquidity Provider, all or any portion of its Series 1995-1
Certificateholders' Interest or its interest therein; PROVIDED that such
assignee shall be an Eligible Assignee; and PROVIDED, FURTHER, that such
assignment shall comply with any applicable legal requirements including,
without limitation, the Act. Each such assignment shall be upon such terms
and conditions as the assignor and the assignee may mutually agree. CRC or
the Liquidity Provider making any such assignment shall provide notice to the
Trustee, the Transferor and the Servicer thereof.
(c) No Series 1995-1 Certificateholder may sell, transfer or
otherwise dispose of (each, a "SALE") any Series 1995-1 Certificate, or any
interest in any Series 1995-1 Certificate, held by it (other than, in the case
of CRC, any assignment to the Liquidity Providers pursuant to Section 2.06 of
the Certificate Purchase Agreement, PROVIDED, that each such Liquidity
Provider shall have previously delivered a Non-Rule 144-A Letter to the
Trustee and the Transferor) unless:
(i) such Sale is to a "qualified institutional buyer" within
the meaning of Rule 144A ("RULE 144A") promulgated under the Act
that purchases for its own account or for the account of another
Person that is a qualified institutional buyer, which Person is
aware that the proposed Sale is being made in reliance on Rule 144A
and to whom such Sale is being made pursuant to an available
exemption from the registration requirements of applicable state
securities laws, and, prior to the proposed Sale, such transferring
Holder has executed and delivered to the Trustee and the Transferor
an investor letter, substantially in the form of EXHIBIT D-1 to the
Agreement (a "RULE 144-A LETTER"), or
(ii) the transferee to whom such Sale is being made is a
sophisticated institutional investor that is an "accredited
investor" (within the meaning of Rule 501(a) (1), (2), (3) or (7)
under the Act) in a transaction not involving any general
solicitation or advertising as evidenced by a certificate of the
proposed transferor thereof delivered to the Trustee, and to whom
such Sale is being made pursuant to an available exemption from the
registration requirements of applicable state securities laws, and,
prior to the proposed Sale, such transferring Holder has executed
and delivered to the Trustee and the Transferor an investor letter,
substantially in the form of EXHIBIT D-2 to the Agreement (a "NON-
RULE 144-A LETTER"), or
(iii) such Sale is being made pursuant to an applicable
exemption from the registration requirements of the Act and
applicable state securities laws and, prior to the proposed Sale
such transferring Holder and the proposed transferee each provide
the Trustee and the Transferor with an investor letter,
substantially in the form of EXHIBIT D-2 to the Agreement and, if
requested by the Trustee or the Transferor, an Opinion of Counsel,
in each case satisfactory in form and substance to the Trustee and
the Transferor, concerning the proposed Sale and the availability of
such exemption.
No Holder of a Series 1995-1 Certificate or other Person acting on behalf of a
Certificateholder shall use any means of general solicitation or distribution
in connection with the Sale of any Series 1995-1 Certificates. Each of the
Series 1995-1 Certificates shall bear a legend substantially as set forth in
the form of the certificate attached to this Series Supplement.
(d) Notwithstanding anything in the foregoing to the contrary, each
Series 1995-1 Certificateholder, and each Person at any time holding an
interest in any Certificate (including, without limitation, each of CRC, the
Liquidity Providers and each of their respective assignees) shall be deemed to
have represented and warranted to each of the Transferor, the Program Agent
and the Trustee, effective as of the first date on which it acquires any
Certificate (or any interest therein) that it is a commercial lender which
makes loans in the ordinary course of its business and that it shall make or
acquire its purchases and/or Increases (or interests therein) under and
pursuant to the Certificate Purchase Agreement for its own account in the
ordinary course of such business. Each such Person, by acquiring its
Certificate (or interest therein) further understands and agrees that by
entering into the transactions contemplated by this Series Supplement and the
other Transaction Documents, it is entering into a funding commitment under a
commercial credit facility and that by making the foregoing representation, it
is not characterizing any of the transactions contemplated by this Series
Supplement, the Certificate Purchase Agreement or any of the other Transaction
Documents as the making of an investment in "securities" as defined in the
Securities Act of 1993, as amended.
SECTION 7.07. NO ASSIGNABILITY BY TRANSFEROR OR SERVICER. Neither
the Servicer nor the Transferor may assign any of its rights and obligations
hereunder or any interest herein without the prior written consent of CRC and
the Program Agent.
SECTION 7.08. AMENDMENTS AND WAIVERS. No amendments, waivers or
other modifications may be made to this Series Supplement without the prior
written consent of the Program Agent (which consent of the Program Agent shall
in all circumstances be given in accordance with the applicable provisions of
the Certificate Purchase Agreement). In addition, no such amendment, waiver
or modification shall be made, the effect of which would be to
(i) change the Debt Service Amount, Dynamic Loss and Dilution
Reserve Percentage, Loss and Dilution Reserve Percentage, Purchase Limit,
Specified Loss and Dilution Reserve Percentage, Concentration Limit,
Default Ratio, Dilution Ratio, Loss to Liquidation Ratio, Revolving
Period, Series 1995-1 Discount Amount, Series 1995-1 Loss and Dilution
Reserve, Series 1995-1 Yield/Fee Reserve or Early Amortization Events,
unless and to the extent that the amendment, waiver or modification
effecting such change shall be consented to by the Program Agent acting
pursuant to the authority granted the Program Agent in the relevant
Certificate Purchase Agreement,
(ii) reduce in any manner the amount of, or delay the timing of,
distributions to be made to any Series 1995-1 Certificateholder or
deposits of amounts to be so distributed, in each case without the prior
written consent of such Series 1995-1 Certificateholder, or
(iii) adversely affect in any other material respect the interests
of any Series 1995-1 Certificateholder, in each case unless the Rating
Agency Condition is satisfied and a Majority in Interest of the Series
1995-1 Certificateholders has consented in writing.
SECTION 7.09. INDEMNIFICATION OF THE TRUSTEE, THE TRUST AND THE
INVESTOR CERTIFICATEHOLDERS. Without limiting any other rights which the
Trustee, the Trust, the Program Agent, any Series 1995-1 Certificateholder or
any Liquidity Provider (each, an "INDEMNIFIED PARTY") may have under the
Agreement, under this Series Supplement, under the Certificate Purchase
Agreement or under applicable law, the Transferor hereby agrees to indemnify
each Indemnified Party from and against any and all damages, losses,
liabilities and related costs and expenses actually incurred (excluding
consequential damages and lost profits), including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out
of or resulting from the Agreement, this Series Supplement, the Certificate
Purchase Agreement, the activities of the Trust or the Trustee in connection
therewith, the Transferor's use of proceeds of transfers of Receivables or
reinvestments of Collections, the interest conveyed under the Agreement in
Trust Assets, or in respect of any Receivable or the Receivables Purchase
Agreement (excluding however (a) Indemnified Amounts to the extent resulting
from willful misconduct, bad faith, gross negligence, the reckless disregard
by such Indemnified Party of any of his, her or its obligations and duties or
breach of fiduciary duty on the part of such Indemnified Party (if any), (b)
losses in respect of Receivables to the extent reimbursement therefor would
constitute credit recourse to the Transferor for nonpayment of any Receivable
by any Originator, (c) any income or franchise taxes or similar taxes (or any
interest or penalties with respect thereto) incurred by such Indemnified Party
arising out of or as a result of this Series Supplement or the interest
conveyed hereunder in Trust Assets or in respect of any Receivable or the
Receivables Purchase Agreement), to the extent caused by:
(i) reliance on any representation, warranty or covenant made or
statement made or deemed made by the Transferor (or any of its
Responsible Officers) under or in connection with the Agreement, this
Series Supplement, the Certificate Purchase Agreement or the Receivables
Purchase Agreement which shall have been incorrect in any material
respect when made or deemed made or which the Transferor shall have
failed to perform;
(ii) the failure by the Transferor or any of the Originators to
comply with the Agreement, this Series Supplement, the Certificate
Purchase Agreement or the Receivables Purchase Agreement or any
applicable Requirement of Law with respect to any Receivable or the
related Contract or the Receivables Purchase Agreement, or the failure of
any Receivable or the related Contract to conform to the Receivables
Purchase Agreement or any Requirement of Law;
(iii) the failure to vest in the Transferor a first priority
perfected ownership interest in and to the Receivables, or the failure to
vest in the Investor Certificateholders either an undivided fractional
beneficial ownership interest, to the extent of their respective
Undivided Fractional Interests, or a first priority perfected security
interest, in and to the Receivables and the other Trust Assets, in each
case free and clear of any Lien (other than any Lien in favor of the
Transferor pursuant to the Receivables Purchase Agreement or in favor of
the Trustee pursuant to this Series Supplement);
(iv) the failure to have filed, or any delay in filing, any
financing statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws that are
necessary for perfection or priority of the ownership and/or security
interests (as the case may be) created by the Receivables Purchase
Agreement and/or the Agreement;
(v) any commingling of Collections with other funds of the
Transferor or any Affiliate;
(vi) any investigation, litigation or proceeding related to the
Agreement, this Series Supplement, the Certificate Purchase Agreement or
the Receivables Purchase Agreement or the Trust or the use of proceeds or
reinvestments of proceeds by the Transferor or Nine West of Transfers of
Receivables or the ownership of or security interest in Trust Assets or
in respect of any Receivable or Contract;
(vii) any claim brought by any Person other than an Indemnified
Party arising from any activity by the Transferor or any Affiliate of the
Transferor in servicing, administering or collecting any Receivable;
(viii) any failure by the Transferor or any Originator (as the case
may be) to perform its duties or obligations in accordance with the
provisions of the Agreement, this Series Supplement, the Certificate
Purchase Agreement or the Receivables Purchase Agreement (as
appropriate); or
(ix) any tax (other than any income or franchise tax, or any
interest or penalties with respect thereto) imposed by reason of
ownership of the Receivables or other Trust Assets by the Trustee; or
(x) any Receivable which is not an Eligible Receivable at the time
of its Transfer to the Trust under the Agreement.
Any Indemnified Amounts due hereunder shall be payable within five
business days following submission of a claim by the Indemnified Party
accompanied by information and documentation reasonably supporting such claim.
Indemnification pursuant to this SECTION 7.09 shall be payable from
assets of the Transferor. The agreement contained in this SECTION 7.09 shall
survive the collection of all Receivables, the termination of the Trust and
the payment of all amounts otherwise payable hereunder.
All rights of indemnification under this SECTION 7.09 are in
addition to, and not by way of substitution for, the obligations and
liabilities of the Transferor and/or the Servicer in favor of the Indemnified
Parties under the Agreement and under this Series Supplement.
SECTION 7.10. SERVICER INDEMNIFICATION. The Servicer hereby agrees
to indemnify each Indemnified Party from and against Indemnified Amounts
awarded against or incurred by any of them arising out of or resulting from
the Agreement, this Series Supplement, the activities of the Trust or the
Trustee in connection therewith, the Transferor's use of proceeds of Transfers
of Receivables or reinvestments of Collections, the interest conveyed under
the Agreement in Trust Assets, or in respect of any Receivable or the
Receivables Purchase Agreement (excluding however (a) Indemnified Amounts
resulting from negligence or willful misconduct on the part of such
Indemnified Party to which such Indemnified Amount would otherwise be due, (b)
losses in respect of Receivables to the extent reimbursement therefor would
constitute credit recourse to the Transferor for nonpayment of any Receivable
by any Originator and (c) any income or franchise taxes or similar taxes (or
any interest or penalties with respect thereto) incurred by such Indemnified
Party arising out of or as a result of this Series Supplement or the interest
conveyed hereunder in Trust Assets or in respect of any Receivable or the
Receivables Purchase Agreement, in each case to the extent caused by:
(i) reliance on any representation, warranty or covenant made by
the Servicer (or any of its Responsible Officers) under or in connection
with the Agreement or this Series Supplement which shall have been
incorrect in any material respect when made or which the Servicer shall
have failed to perform;
(ii) the failure by the Servicer to comply with any applicable
Requirement of Law with respect to any Receivable or the related
Contract;
(iii) any commingling of Collections with other funds of the
Servicer or any Affiliate;
(iv) any claim brought by any Person other than an Indemnified
Party arising from any activity by the Servicer or any Affiliate of the
Servicer in servicing, administering or collecting any Receivable; or
(v) any failure by the Servicer to perform its duties or
obligations in accordance with the provisions of the Agreement or this
Series Supplement.
Indemnification pursuant to this SECTION 7.10 shall only be payable
from the assets of the Servicer. The agreement contained in this SECTION 7.10
shall survive the collection of all Receivables, the termination of the Trust
and the payment of all amounts otherwise due under the Agreement and this
Series Supplement.
Any Indemnified Amounts due hereunder shall be payable following
submission of a claim by the Indemnified Party accompanied by information and
documentation reasonably supporting such claim.
All rights of indemnification under this SECTION 7.10 are in
addition to, and not by way of substitution for, the obligations and
liabilities of the Transferor and/or the Servicer in favor of the Indemnified
Parties under the Agreement and under this Series Supplement (including,
without limitation, under Section 8.04 of the Agreement).
SECTION 7.11. ADDITIONAL REPORTING REQUIREMENTS.
(a) On each Business Day, the Trustee shall provide by telecopy to
each of the Series 1995-1 Certificateholders and the Program Agent, a copy of
the Daily Report received from the Servicer.
(b) The Trustee shall deliver to each of the Series 1995-1
Certificateholders and the Program Agent, promptly upon its receipt thereof, a
copy of (i) the Annual Certificate of Servicer (described at Section 3.06 of
the Agreement) and (ii) the Annual Servicing Report of Independent Public
Accountants (described at Section 3.06 of the Agreement).
SECTION 7.12. EFFECT ON ORIGINAL SERIES 1995-1 SUPPLEMENT. Each of
the parties hereto ratifies the Purchase, Invested Amount, Increases,
payments, representations, warranties, covenants and indemnities made by, to,
in favor of, or otherwise on behalf of, such party under the Original Series
1995-1 Supplement and agrees that such agreement is, as of the date hereof and
until the Effective Restatement Date has occurred, in full force and effect.
From and after the Effective Restatement Date, (i) the terms and provisions of
this Series Supplement shall amend and supersede the terms and provisions of
the Original Series 1995-1 Supplement in their entirety and the continuing
rights, remedies and obligations of the parties with respect to any such
Purchase, Invested Amount, Increases, payments, representations, warranties,
covenants and indemnities under the Original Series 1995-1 Supplement shall be
governed by the terms and provisions of this Series Supplement to the same
extent as if such Purchase, Invested Amount, Increases, payments,
representations, warranties, covenants and indemnities had been made under
this Series Supplement, (ii) all references in any of the other Transaction
Documents to the Original Series 1995-1 Supplement shall mean and be a
reference to the Original Series 1995-1 Supplement as the same is amended and
restated hereby, and (iii) each reference to the "Purchase", "Invested
Amount", "Increase" and "Class A Certificates" in the Original Series 1995-1
Supplement, or in any other Transaction Document, shall mean and be a
reference to the Purchase, Invested Amount, Increase and Series 1995-1
Certificates hereunder (as the case may be). It is expressly understood and
agreed that the execution and delivery of this Series Supplement is not
intended to be, and shall not be construed as, a novation of the Original
Series 1995-1 Supplement, any of the other Transaction Documents, or any of
the transactions evidenced thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Series
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
NINE WEST FUNDING CORPORATION
Transferor
By: /s/Robert C. Galvin
--------------------------
Name: Robert C. Galvin
Title: Executive Vice President
Chief Financial Officer
& Treasurer
NINE WEST GROUP INC.,
Servicer
By: /s/Robert C. Galvin
-------------------------
Name: Robert C. Galvin
Title: Executive Vice President
Chief Financial Officer
& Treasurer
THE BANK OF NEW YORK
not in its individual capacity,
but solely as Trustee of the
Trust
By: /s/Cheryl L. Laser
----------------------------
Name: Cheryl L. Laser
Title: Assistant Vice President