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EXHIBIT 4.4
AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT
Amendment No. 1 to Receivables Purchase Agreement (this
"Amendment"), dated as of September 13, 1994 by and between BROADWAY
RECEIVABLES, INC. (formerly, CHH Receivables, Inc.) (the "Purchaser") and
BROADWAY STORES, INC. (formerly, Carter Hawley Hale Stores, Inc.) (the "Seller"
and "Servicer"). All capitalized terms used herein not otherwise defined shall
have the respective meanings assigned to such terms in the Receivables Purchase
Agreement hereinafter described.
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into a Receivables
Purchase Agreement, dated as of October 8, 1992 (the "Receivables Purchase
Agreement"); and
WHEREAS, the parties hereto wish to amend the Receivables
Purchase Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of the
commitments made hereunder by the Seller and the Purchaser, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Section 6.3(a) of the Receivables Purchase Agreement is hereby
amended by deleting the clause "the fiscal quarter of the Seller ending in
October of each year commencing in 1992" in lines 7 and 8 thereof and inserting
in lieu thereof the following language:
"each fiscal year of the Seller,".
2. Section 6.3(b) of the Receivables Purchase Agreement is hereby
amended by deleting the clause "45 days after the end of the fiscal quarter of
the Seller ending in July or August of each year commencing in 1993" in lines
4, 5 and 6 thereof and inserting in lieu thereof the following language:
"60 days after the end of the second fiscal quarter of each fiscal
year of the Seller".
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3. Section 6.17 of the Receivables Purchase Agreement is hereby
amended by deleting clauses (iii) and (iv) thereof and substituting in place
therefor the following:
"(iii) a written confirmation will have been obtained from each Rating
Agency rating the Commercial paper or the Non-Affiliate Subordinated
Notes that the rating of the Commercial Paper or the Non-Affiliate
Subordinated Notes, as applicable, will not be affected as the result
of the contemplated transfer of the Accounts, the Receivables and the
credit card operations to the Arizona Bank, (iv) each of the
Collateral Agent, the Agent, the LOC Providers, the Trustee and the
Liquidity Lenders will have received an opinion of counsel acceptable
to each party with respect to clause (ii) above and as to certain
other matters, including appropriate federal and Arizona state tax
opinions and"
4. Section 10.6 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"Section 10.6. No Bankruptcy Petition. The Servicer
covenants and agrees and any Successor Servicer shall covenant and
agree that prior to the date which is one year and one day after the
payment in full of all Advances and Non-Affiliate Subordinated Notes,
it will not institute against, or join any other Person in instituting
against, the Purchaser any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
This Section 10.6 shall survive the termination of this Agreement."
5. The Receivables Purchase Agreement is hereby amended by
deleting the form of Purchase Report set forth as Exhibit A to the Receivables
Purchase Agreement and inserting in place thereof Exhibit A attached to this
Amendment.
6. The Receivables Purchase Agreement is hereby amended by
deleting the form of Lender Report set forth as Exhibit B to the Receivables
Purchase Agreement and inserting in place thereof Exhibit B attached to this
Amendment.
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7. In order to induce the Purchaser to enter into this Amendment,
the Seller hereby represents and warrants as of the date hereof that no
Purchase Termination Event has occurred and is continuing.
8. This Amendment is limited as specified and shall not
constitute a modification or waiver of any other provision of the Receivables
Purchase Agreement.
9. The Seller and the Purchaser shall deliver to the Agent and to
the Collateral Agent such resolutions approving and authorizing this Amendment
and such opinions of counsel and corporate certificates as the Agent or the
Collateral Agent may reasonably request, which resolutions, opinions and
certificates shall be in form and substance satisfactory to the Agent and to
the Collateral Agent.
10. This Amendment shall be effective on the later of (i) the date
on which each of the parties hereto shall have executed and delivered a copy or
counterpart of this Amendment to each other party hereto, (ii) the date on
which the Agent and the Collateral Agent shall have consented in writing to
this Amendment and (iii) the date upon which each Rating Agency shall have
confirmed that the execution of this Amendment shall not result in the
downgrading of the Commercial Paper.
11. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of which when
so executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument.
12. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the laws of the
State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
BROADWAY RECEIVABLES, INC.
By:___________________________
Name:
Title:
BROADWAY STORES, INC.
By:___________________________
Name:
Title:
consented:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:___________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Collateral Agent
By:___________________________
Name:
Title:
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