1
Exhibit 10(c)
EXECUTION COPY
================================================================================
SERIES 2000-1 CERTIFICATE PURCHASE AGREEMENT
Dated May 19, 2000
among
THE EL-BEE RECEIVABLES CORPORATION
as Seller,
----------
CORPORATE RECEIVABLES CORPORATION, EAGLEFUNDING CAPITAL
CORPORATION AND THE OTHER COMMERCIAL PAPER CONDUITS FROM TIME
TO TIME PARTY HERETO
as Conduit Purchasers,
----------------------
CITIBANK, N.A., EAGLEFUNDING CAPITAL CORPORATION AND THE OTHER
FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Committed Purchasers,
------------------------
CITICORP NORTH AMERICA, INC., FLEETBOSTON ROBERTSON STEPHENS INC.
AND THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
as Managing Agents
------------------
CITICORP NORTH AMERICA, INC.
as Program Agent for the Purchasers
-----------------------------------
and
BANKERS TRUST COMPANY,
as Trustee
----------
================================================================================
2
TABLE OF CONTENTS
-----------------
ARTICLE I
DEFINITIONS
Section 1.01. Definitions....................................................1
Section 1.02. Other Definitional Provisions..................................9
ARTICLE II
THE PURCHASE; INCREASES
Section 2.01. The Purchase..................................................10
Section 2.02. Increases.....................................................10
Section 2.03. Class A Certificates..........................................11
Section 2.04. Reductions to the Series 2000-1 Class A Purchase Limit........11
Section 2.05. Procedures for Making the Purchase and Increases..............11
Section 2.06. Extension of Term.............................................12
ARTICLE III
FEES AND YIELD PROTECTION
Section 3.01. Fees..........................................................13
Section 3.02. Increased Costs...............................................13
Section 3.03. Taxes.........................................................14
Section 3.04. Cost and Expenses.............................................17
Section 3.05. Sharing of Payments, Etc......................................18
ARTICLE IV
CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES
Section 4.01. Conditions Precedent to Initial Purchase......................18
Section 4.02. Conditions Precedent to the Purchase and All Increases........21
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties of the Seller..................23
Section 5.02. Representations and Warranties of the Servicer................23
ARTICLE VI
THE PROGRAM AGENT; THE MANAGING AGENTS
Section 6.01. Authorization and Action of the Program Agent.................23
Section 6.02. The Program Agent's Reliance, Etc.............................23
Section 6.03. The Program Agent and Affiliates..............................24
Section 6.04. Indemnification of the Program Agent..........................24
i
3
Section 6.05. Payments by the Program Agent.................................25
Section 6.06. Authorization and Action of Managing Agent....................25
Section 6.07. Managing Agent's Reliance, Etc................................26
Section 6.08. The Managing Agents and Affiliates............................26
Section 6.09. Indemnification of the Managing Agent.........................27
Section 6.10. Payments by a Managing Agent..................................27
Section 6.11. Purchaser Credit Decision.....................................27
ARTICLE VII
ASSIGNMENTS AND PARTICIPATIONS
Section 7.01. Assignment....................................................28
Section 7.02. Rights of Assignee............................................28
Section 7.03. Notice of Assignment..........................................28
Section 7.04. Register......................................................29
Section 7.05. Participations................................................29
Section 7.06. Restrictions on Assignments and Participations................29
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc...............................................30
Section 8.02. Notices, Etc..................................................30
Section 8.03. No Waiver; Remedies; Set-Off..................................30
Section 8.04. Binding Effect; Survival......................................31
Section 8.05. No Proceedings................................................31
Section 8.06. Captions and Cross References.................................31
Section 8.07. Integration...................................................31
Section 8.08. Replacement of Purchasers.....................................31
Section 8.09. Confidentiality...............................................32
Section 8.10. Reimbursement of Program Agent................................32
Section 8.11. Limitation of Liability.......................................32
Section 8.12. Governing Law.................................................33
Section 8.13. Submission to Jurisdiction....................................33
Section 8.14. Consent to Service of Process.................................33
Section 8.15. Execution in Counterparts.....................................34
Section 8.16. Waiver of Jury Trial..........................................34
ii
4
SERIES 2000-1 CERTIFICATE PURCHASE AGREEMENT dated May 19, 2000 among
THE EL-BEE RECEIVABLES CORPORATION, a Delaware corporation, as Seller (the
"SELLER"), CORPORATE RECEIVABLES CORPORATION, a Delaware corporation ("CRC"),
EAGLEFUNDING CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and
the other commercial paper conduits from time to time party hereto, each a
Conduit Purchaser, CITIBANK, N.A., a national banking association ("CITIBANK"),
EAGLEFUNDING FUNDING CAPITAL CORPORATION, a Delaware corporation
("EAGLEFUNDING") and the other financial institutions from time to time party
hereto, as Committed Purchasers, CITICORP NORTH AMERICA, INC., a Delaware
corporation ("CNAI"), FLEETBOSTON ROBERTSON STEPHENS INC., a Massachusetts
corporation ("FRSI") and the other financial institutions from time to time
party hereto, as Managing Agents, CITICORP NORTH AMERICA, INC., a Delaware
corporation, as Program Agent (the "PROGRAM AGENT") and BANKERS TRUST COMPANY, a
New York banking corporation, not in its individual capacity but solely as
Trustee (the "TRUSTEE").
PRELIMINARY STATEMENTS:
1. The Elder-Beerman Master Trust formed under the Pooling and
Servicing Agreement (as such term and other terms used in these Preliminary
Statements are hereinafter defined) may issue the Class A Certificates at the
direction of the Seller.
2. Subject to the terms and conditions of this Agreement and of the
Series 2000-1 Supplement, the Seller may sell the Class A Certificates to the
Managing Agents for the benefit of the Conduit Purchasers and the Committed
Purchasers in the related Purchaser Group.
3. Subject to the terms and conditions of this Agreement, the Conduit
Purchasers may, and the Committed Purchasers shall, fund from time to time,
Increases in the Class A Invested Amount.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. All capitalized terms used herein and not
otherwise defined herein shall have the meanings specified in the Pooling and
Servicing Agreement or in the Series 2000-1 Supplement (as defined below). In
addition, the term "Agreement" shall mean this Series 2000-1 Certificate
Purchase Agreement, as the same may from time to time be amended, supplemented
or otherwise modified. Whenever used in this Agreement, the following words and
phrases shall have the following meanings:
"ADJUSTED EURODOLLAR RATE" means, for any Interest Period, an interest
rate per annum equal to the rate per annum obtained by dividing (i) an interest
rate per annum equal to the London interbank offered rate for one-month United
States dollar deposits (rounded upward,
5
if necessary, to the nearest whole multiple of 1/16th of one percent) that
appears on the display of the Dow Jones Telerate Service currently designated as
Telerate Page 3750 (or such other page as may replace that page on that service
for the purpose of displaying comparable rates or prices) as of 11:00 a.m.,
London time, on the second Business Day preceding the commencement of such
Interest Period for a period equal to such Interest Period by (ii) a percentage
equal to 100% minus the Eurodollar Reserve Percentage (as defined below) for
such period. "EURODOLLAR RESERVE PERCENTAGE" means, for any period, the reserve
percentage applicable two Business Days before the first day of such period
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) (or, if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such period during which any such percentage shall so be applicable) for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) applicable to liabilities or
assets consisting of or including "eurocurrency liabilities" as that term is
used in Regulation D, as in effect from time to time, of the Board of Governors
of the Federal Reserve System (or with respect to any other category of
liabilities that includes deposits by reference to which the Adjusted Eurodollar
Rate is determined) having a term equal to such period.
"AFFECTED PERSON" means any Conduit Purchaser, any partner therein or
shareholder thereof, any Committed Purchaser and any Liquidity Provider (and,
for purposes of Section 3.03, the Trust and the Trustee).
"ALTERNATE BASE RATE" means, for any Interest Period, a fluctuating
interest rate per annum in effect from time to time, which rate per annum shall
at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank, N.A. in New
York, New York from time to time as Citibank, N.A.'s base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (A) 1/2 of 1% per
annum, PLUS (B) the rate obtained by dividing (1) 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 (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if such day
is not a Business Day on the next succeeding Business Day) for the three
week period ending on the previous Friday by Citibank, N.A. on the basis of
such rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received
by Citibank, N.A. from three certificate of deposit dealers of recognized
standing selected by Citibank, N.A., by (2) a percentage equal to 100%
minus the average of the daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank, N.A. with respect to liabilities consisting of
or including (among other liabilities) three-month Dollar non-personal time
deposits in the United States, PLUS (C) the average during such three-week
2
6
period of the annual assessment rates estimated by Citibank, N.A. for
determining the then current annual assessment payable by Citibank, N.A. to
the FDIC (or any successor) for insuring Dollar deposits of Citibank, N.A.
in the United States; and
(c) 1/2 of 1% per annum above the fluctuating interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by Citibank, N.A. from three Federal funds brokers of
recognized standing selected by it.
"ASSIGNEE RATE" means, for any Interest Period, an interest rate per
annum equal to the Adjusted Eurodollar Rate plus 2.50%; provided, however, that,
if (x) it shall become unlawful for any Committed Purchaser to obtain funds in
the London interbank market in order to purchase, fund or maintain its initial
investment in the Class A Certificates or any Increase hereunder, or deposits in
dollars (in the applicable amounts) are not being offered by such Committed
Purchaser in the London interbank market, (y) any Committed Purchaser is unable
to establish the Adjusted Eurodollar Rate for any applicable period due to
circumstances affecting the London interbank market generally, or (z) the
Managing Agent for a Purchaser Group notifies the Seller and the Program Agent
of its determination that the Adjusted Eurodollar Rate will not adequately
reflect the cost of funding or maintaining the Class A Invested Amount (until
such Managing Agent shall have notified the Seller and the Program Agent that
such Managing Agent has determined that the Adjusted Eurodollar Rate will
adequately reflect such cost), then, in each case, the Assignee Rate shall be
the Alternate Base Rate in effect from time to time PLUS 1/2 of 1%; provided,
further, that 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 the provisions set forth above PLUS 1/2 of 1%
per annum.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance in
substantially the form of Exhibit A hereto pursuant to which any Committed
Purchaser assigns all or a portion of its rights and obligations under this
Agreement in accordance with the terms of Section 6.01(b).
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, 11
U.S.C.secs. 101 et seq., as amended from time to time.
"BREAKAGE COSTS" means (a) with respect to a Conduit Purchaser and for
each reduction of the Class A Invested Amount other than on a Distribution Date,
the amount, if any, by which (i) the additional interest at the applicable
Certificate Rate (calculated without taking into account any breakage costs)
which would have accrued on an amount equal to such Conduit Purchaser's portion
of such reduction of the Class A Invested Amount from the time of such reduction
to the Distribution Date next succeeding such reduction exceeds (ii) the income
received by such Conduit Purchaser to the Distribution Date next succeeding such
reduction from investing the proceeds of such Conduit Purchaser's portion of
such reduction of the Class A Invested Amount or (b) with respect to a Committed
Purchaser and for each reduction of the
3
7
Class A Invested Amount other than on a Distribution Date, an amount equal to
the sum of (i) the additional interest at the applicable Certificate Rate
(calculated without taking into account any breakage costs) which would have
accrued on an amount equal to such Committed Purchaser's portion of the amount
of such reduction of the Class A Invested Amount from the time of such reduction
through the last day of the period for which the Adjusted Eurodollar Rate has
been set MINUS (ii) the income received by such Committed Purchaser through the
last day of such period from investing the proceeds of such Committed
Purchaser's portion of such reduction of the Class A Invested Amount, PLUS (iii)
any loss, cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Committed Purchaser to fund or
maintain its share of the Class A Invested Amount; provided, that, if the
Assignee Rate at the time of such reduction is determined by reference to the
Alternate Base Rate, then the amount under this clause (b) shall be deemed to be
zero.
"CHANGE IN TAX LAW" means any amendment to, or change in, the laws (or
any regulations thereunder) of the United States of America or any political
subdivision or taxing authority thereof or therein affecting taxation or any
amendment to, or change in, an interpretation or application of, such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision or regulatory determination).
"CLASS A CERTIFICATE RATE" means, with respect to the Class A
Certificate held by each Purchaser Group, with respect to any Interest Period,
an amount, (expressed as a percentage) equal to:
(a) to the extent that during such Interest Period a Conduit Purchaser
is funding its share of the Class A Invested Amount by issuing Commercial
Paper, the CP Rate for such Conduit Purchaser;
(b) to the extent that during such Interest Period (A) a Conduit
Purchaser is funding its interest in the Class A Invested Amount other than
by issuing its Commercial Paper or (B) a Committed Purchaser is funding an
interest in the Class A Invested Amount other than by issuing Commercial
Paper, the Assignee Rate; and
(c) upon the occurrence and during the continuance of an Early
Amortization Event, the Assignee Rate.
"COMMERCIAL PAPER" means, with respect to each Conduit Purchaser, the
promissory notes issued by such Conduit Purchaser in the commercial paper
market.
"COMMITMENT" means (i) with respect to each Committed Purchaser, the
commitment of such Committed Purchaser to purchase an interest in a Class A
Certificate on the Closing Date and to fund its Committed Percentage of its
Purchaser Group's Pro Rata Share of Increases on any Increase Date in accordance
herewith in an amount not to exceed the dollar amount set forth opposite such
Committed Purchaser's signature on Schedule 1 hereto under the heading
"Commitment," as such amount may be reduced pursuant to SECTION 2.04, MINUS the
dollar amount of any Commitment or portion thereof assigned by such Committed
Purchaser pursuant to an Assignment and Acceptance Agreement PLUS the dollar
amount of any increase to
4
8
such Committed Purchaser's Commitment consented to by such Committed Purchaser
prior to the time of determination, and (ii) with respect to any Person which
becomes a Committed Purchaser hereunder pursuant to an Assignment and Assumption
Agreement or a Joinder Agreement, the commitment of such Person to fund
increases to the related Purchaser Group's Pro Rata Share of the Principal
Amount on any Increase Date in an amount not to exceed the dollar amount set
forth in such Assignment and Assumption Agreement or Joinder Agreement (less the
amount paid by such Person to purchase its interest in the Principal Amount
pursuant to such Assignment and Assumption Agreement or Joinder Agreement), as
such amount may be reduced pursuant to SECTION 2.04, MINUS the dollar amount of
any Commitment or portion thereof assigned by such Person pursuant to a
subsequent Assignment and Assumption Agreement prior to such time of
determination PLUS the dollar amount of any increase to such Committed
Purchaser's Commitment consented to by such Committed Purchaser prior to the
time of determination.
"COMMITTED PERCENTAGE" shall mean, for each Committed Purchaser within
any Purchaser Group, with respect to any date of determination, a fraction
(expressed as a percentage) having as its numerator the Commitment of such
Committed Purchaser as of such date and as its denominator the sum of the
Commitments of all Committed Purchasers within the related Purchaser Group as of
such date.
"COMMITTED PURCHASERS" shall mean, collectively, and "COMMITTED
PURCHASER" shall mean, individually, each of (a) with respect to the Purchaser
Group for which CNAI acts as Managing Agent, Citibank and its respective
successors and assigns, (b) with respect to the Purchaser Group for which FRSI
acts as Managing Agent, EagleFunding and its respective successors and assigns
and (c) with respect to any other Purchaser Group, the financial institutions
specified as such in the applicable Joinder Agreement and their respective
successors and assigns.
"CONDUIT ASSIGNEE" means a commercial paper conduit that issues
Commercial Paper and which has at least two (2) of the following ratings: "A-1"
or better by Standard & Poor's, "P-1" by Moody's and "D-1" by DCR, and which
commercial paper conduit is managed by the Managing Agent for the Purchaser
Group which includes a Conduit Purchaser.
"CONDUIT PURCHASER" means, individually, each of (a) with respect to
the Purchaser Group for which CNAI is the Managing Agent, CRC and any related
Conduit Assignee, (b) with respect to the Purchaser Group for which FRSI is the
Managing Agent, EagleFunding and any related Conduit Assignee and (c) with
respect to any other Purchaser Group, the financial institutions specified as
such in the Assignment and Assumption Agreement or Joinder Agreement pursuant to
which such financial institutions became a party hereto and their respective
successors and permitted assigns (including any related Conduit Assignee), and
"CONDUIT PURCHASERS" shall mean, collectively, all of the foregoing.
"CONFIDENTIAL INFORMATION" means any written information delivered or
made available by or on behalf of the Parent (or its Affiliates or
Subsidiaries), the Servicer or the Seller to any Person in connection with or
pursuant to this Agreement or the transactions contemplated hereby, other than
information (i) which was publicly known, or otherwise known to such Person
(other than from any party to a Transaction Document or any other Person not
entitled to disclose
5
9
the same free of any confidentiality requirements) at the time of disclosure or
(ii) which subsequently becomes publicly known through no act or omission by
such Person.
"CP RATE" shall mean (a) with respect to the Conduit Purchasers which
are members of the Purchaser Group for which CNAI is the Managing Agent, for any
Interest Period, the per annum rate equivalent to the weighted average of the
per annum rates paid or payable by the Conduit Purchasers in such Purchaser
Group from time to time as interest on or otherwise (by means of interest rate
hedges or otherwise) in respect of the promissory notes issued by such Conduit
Purchasers that are allocated, in whole or in part, by the Managing Agent (on
behalf of such Conduit Purchasers) to fund or maintain its interest in the
Principal Amount during such Interest Period, as determined by the Managing
Agent (on behalf of such Conduit Purchasers), which rates shall reflect and give
effect to the commissions of placement agents and dealers in respect of such
promissory notes, the extent that such commissions are allocated, in whole or in
part, to such promissory notes by the Managing Agents (on behalf of such Conduit
Purchasers); PROVIDED, HOWEVER, that if any component of such rate is a discount
rate, in calculating the "CP RATE" for such Interest Period, the Managing Agent
shall for such component use the rate resulting from converting such discount
rate to an interest bearing equivalent rate per annum, (b) with respect to the
Conduit Purchasers which are members of the Purchaser Group for which FRSI is
the Managing Agent, with respect to any Interest Period and the outstanding
principal amount of such Conduit Purchaser's Pro Rata Share of the Class A
Invested Amount which such Conduit Purchaser has funded or maintained by issuing
Commercial Paper, the rate notified by each such Conduit Purchaser to the
Program Agent as its "CP Rate" for such such Conduit Purchaser's Pro Rata Share
of the Class A Invested Amount and such Interest Period, which rate shall (i)
reflect the actual cost of funds to such Conduit Purchaser of making and
maintaining such Conduit Purchaser's Pro Rata Share of the Class A Invested
Amount for such Interest Period, (ii) be calculated in the manner in which such
Conduit Purchaser typically calculates its cost of funds in similar transactions
and (iii) include an increment to such rate sufficient in amount to enable such
Conduit Purchaser to collect all amounts of fees payable by or on behalf of such
Conduit Purchaser to any dealer or placement agent of such Conduit Purchaser's
Commercial Paper in respect of all such Conduit Purchaser's Commercial Paper
issued by such Conduit Purchaser to fund such Purchase for the term of the
Interest Period; provided, however, if such rate with regard to any Interest
Period for the applicable Purchase is a discount rate (or rates), the "CP RATE"
for such Interest Period shall be the rate resulting from converting such
discount rate (or rates) to an interest-bearing equivalent rate per annum. and
(c) with respect to the Conduit Purchasers which are members of any Purchaser
Group which becomes a party hereto pursuant to an Assignment and Assumption
Agreement or a Joinder Agreement, the rate defined as the "CP Rate" in such
Assignment and Assumption or Joinder Agreement.
"CNAI" has the meaning specified in the preamble to this Agreement.
"CRC" has the meaning specified in the preamble to this Agreement.
"EAGLEFUNDING" has the meaning specified in the preamble to this
Agreement.
"ELIGIBLE ASSIGNEE" means (a) a Conduit Assignee or (b) a depository
institution organized under the laws of the United States of America or any
state thereof, or the District of
6
10
Columbia (or any domestic branch of a foreign bank authorized under any such
laws), (i) whose senior long-term unsecured debt obligations are rated at least
(A) "A-" or better by Standard & Poor's, and (B) "A3" or better by Moody's, (ii)
which is subject to regulation regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b), and (iii) which has a
combined capital and surplus of at least $500,000,000.
"EXTENSION TERM" has the meaning specified in Section 2.06.
"FEE LETTER" shall mean, for each Purchaser Group, a letter between its
Managing Agent and the Seller setting out the applicable fees for such Purchaser
Group.
"FRSI" has the meaning specified in the preamble to this Agreement.
"INCREASE" has the meaning specified in Section 2.02.
"INITIAL TERM" means, with respect to each Committed Purchaser's
Commitment, the period which commences on the date hereof and ends on May 18,
2001.
"JOINDER AGREEMENT" shall mean a Joinder Agreement, in substantially
the form of EXHIBIT D hereto, executed by Seller, Servicer, the Program Agent,
each Person which becomes a party hereto as a member of a Purchaser Group (or
Purchaser Groups) which is added hereto.
"LIQUIDITY PROVIDER" shall mean the Person or Persons which provide
liquidity support to a Conduit Purchaser or a Committed Purchaser that issues
Commercial Paper, pursuant to a Liquidity Provider Agreement.
"LIQUIDITY PROVIDER AGREEMENT" shall mean an agreement between a
Conduit Purchaser and a Liquidity Provider evidencing the obligation of such
Liquidity Provider to provide liquidity support to such Conduit Purchaser in
connection with the issuance by such Conduit Purchaser of Commercial Paper.
"MANAGING AGENTS" shall mean, (a) with respect to the Purchaser Group
of which CRC is a member, CNAI, (b) with respect to the Purchaser Group of which
EagleFunding is a member, FRSI and (c) with respect to any other Purchaser
Group, the financial institution or other Person identified as such in the
Assignment and Acceptance Agreement or Joinder Agreement pursuant to which the
members of such Purchaser Group became parties hereto.
"MANAGING AGENTS' ACCOUNTS" shall mean, (a) with respect to CNAI, the
segregated account established by CNAI with Citibank in New York, New York which
shall be identified as "Managing Agent's Account for the Elder-Beerman Master
Trust, Series 2000-1 Class A" and shall bear a designation clearly indicating
that the funds deposited therein are held for the benefit of its Purchaser Group
and (b) with respect to FRSI, that certain account at Bankers Trust Company, ABA
#: 0210-0103-3, Acct #: 014-19-647, Ref: EagleFunding-El-Bee Receivables Corp.,
Collateral Account #: 029948, Attn: Inna Shneyder, CP Group.
"MONTHLY PROGRAM FEES" shall have the meaning set forth in the Fee
Letters.
7
11
"OBLIGATIONS" means all obligations of any Originator, the Seller, the
Seller, the Servicer or the Parent to any one or more of the Trustee, the Trust,
the Purchaser, the Committed Purchasers, each other Indemnified Party and its
respective successors, permitted transferees and assigns, arising under or in
connection with the Transaction Documents, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due.
"PARENT" means The Elder-Beerman Stores Corp., an Ohio corporation.
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing
Agreement dated as of December 30, 1997, among the Seller, the Servicer and the
Trustee, as amended, supplemented or otherwise modified from time to time.
"PROGRAM AGENT" means CNAI, together with its successors and assigns as
agent for the Purchasers.
"PRO RATA SHARE" shall mean, for a Purchaser Group at any time of
determination, a fraction (expressed as a percentage) having the Purchaser Group
Limit for such Purchaser Group as its numerator and the Series 2000-1 Class A
Purchase Limit as its denominator; provided, however, that if any Purchaser
fails to fund any amount as required hereunder, "PRO RATA SHARE" shall mean, for
purposes of making all distributions hereunder, a fraction (express as a
percentage) having the actual portion of the outstanding Class A Invested Amount
funded by each Purchaser Group as its numerator and the outstanding Class A
Invested Amount as its denominator.
"PURCHASE" means the purchase under Section 2.01 of a Class A
Certificate by each Managing Agent on behalf of the Purchasers in the related
Purchaser Group.
"PURCHASE DATE" means the date on which the Purchase of the Class A
Certificates occurs.
"PURCHASE PRICE" means, with respect to each Class A Certificate, the
price specified in the notice from the Seller (substantially in the form of
Exhibit B hereto) delivered on or before the Purchase Date pursuant to Section
2.05(a).
"PURCHASER GROUP" shall mean each group of Purchasers consisting of one
or more Conduit Purchasers, the related Committed Purchasers, a Managing Agent
and their respective assigns and participants.
"PURCHASER GROUP LIMIT" shall mean, (a) with respect to the Purchaser
Group for which CNAI acts as Managing Agent, $75,000,000, as such amount may be
decreased pursuant to SECTION 2.04 hereof, or reduced by Assignment pursuant to
SECTION 8.01 hereof, (b) with respect to the Purchaser Group for which FRSI acts
as Managing Agent, $75,000,000 , as such amount may be decreased pursuant to
SECTION 2.04 hereof, or reduced by Assignment pursuant to SECTION 8.01 hereof,
and (c) with respect to any other Purchaser Group, the amount indicated in the
Assignment and Acceptance Agreement or Joinder Agreement by which the members of
such Purchaser Group become parties to this Agreement, as such amount may be
decreased pursuant to SECTION 2.04 hereof, or reduced by Assignment pursuant to
SECTION 8.01 hereof.
8
12
"PURCHASERS" shall mean collectively, the Conduit Purchasers and the
Committed Purchasers.
"REGISTER" has the meaning specified in Section 7.04.
"REVOLVING PERIOD TERMINATION DATE" means the date on which the
Revolving Period terminates, pursuant to the Pooling and Servicing Agreement and
the Series 2000-1 Supplement.
"SELLER" shall have the meaning specified in the preamble to this
Agreement.
"SERIES 2000-1 CLASS A CERTIFICATE INTEREST" means each interest in the
Class A Certificates acquired by a Conduit Purchaser or a Committed Purchaser.
"SERIES 2000-1 MAJORITY IN INTEREST" means the Managing Agents for each
of the Purchaser Groups.
"SERIES 2000-1 CLASS A PURCHASE LIMIT" means, as of any date,
$150,000,000 (or, if less, the aggregate amount of Commitments of all Committed
Purchasers who as of such date are party to this Agreement) as such amount shall
have been reduced pursuant to Section 2.04 hereof.
"SERIES 2000-1 SUPPLEMENT" means the Series 2000-1 Supplement dated as
of the date hereof among the Seller, the Servicer and the Trustee.
"TELERATE PAGE 3750" shall mean the British Bankers Association Libor
Rates (determined at 11:00 a.m. London time) that are published by Dow Jones
Telerate, Inc.
"TERM" means, with respect to each Commitment, the Initial Term and
each Extension Term as provided in Section 2.06.
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All accounting terms not defined in this Agreement, and accounting
terms partly defined in this Agreement to the extent not completely
defined, shall have the respective meanings given to them under GAAP or
regulatory accounting principles, as applicable and in effect from time to
time. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under GAAP or regulatory
accounting principles, the definitions contained herein shall control.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; and Section,
Schedule and Exhibit references contained in this Agreement are references
to Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; the term "including" means "including without
limitation".
9
13
(c) Unless otherwise stated in this Agreement, in the computation of a
period of time from a specified date to a later specified date, the word
"from" shall mean "from and including" and the words "to" and "until" shall
mean "to but excluding".
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms, and to the masculine as
well as the feminine and neuter genders, of such terms.
ARTICLE II
THE PURCHASE; INCREASES
Section 2.01. THE PURCHASE.
(a) On the terms and subject to the conditions set forth in this
Agreement, the Pooling and Servicing Agreement and the Series 2000-1
Supplement, and in reliance on the covenants, representations and
agreements set forth herein and therein, (i) the Seller agrees to sell,
transfer and deliver to each Managing Agent on behalf of the Purchasers in
the related Purchaser Group, and (ii) each Conduit Purchaser, acting
through its Managing Agent, may, in its discretion, and each Committed
Purchaser, acting through its Managing Agent, shall, if the related Conduit
Purchaser determines not to so purchase, purchase, on the Closing Date, an
interest in the Class A Certificate issued to its Managing Agent having an
aggregate maximum face amount equal to the applicable Purchaser Group
Limit. If the Purchase of an interest in the Class A Certificate for any
Purchaser Group is made by the Committed Purchasers in such Purchaser
Group, the Purchase Price for such Class A Certificate shall be allocated
among the Committed Purchasers based on their respective Committed
Percentages. Without limiting any other provision of this Agreement, the
obligation of any Purchaser to purchase an interest in an Investor
Certificate is subject to the satisfaction of the conditions precedent set
forth in Section 4.01 hereof.
(b) Under no circumstances shall any Purchaser make any purchase of
Class A Certificates on any day if, as a result thereof, the related
Purchaser Group's Pro Rata Share of the Series Invested Amount would exceed
its Purchaser Group Limit.
Section 2.02. INCREASES.
(a) The Conduit Purchasers in each Purchaser Group, through their
respective Managing Agent, may (but are not committed to) at the request of
the Seller and subject to the satisfaction of the conditions precedent set
forth in Article IV, fund increases of the Class A Invested Amount (each
such increase, an "INCREASE") with such Purchaser Group's Pro Rata Share of
an Increase in amounts to be allocated among the Conduit Purchasers by
their respective Managing Agents. If any Conduit Purchaser chooses at any
time not to fund its portion of such portion of such Purchaser Group's Pro
Rata Share of an Increase when requested by Seller, the related Committed
Purchasers, through their respective Managing Agent, shall, if the date of
such Increase occurs prior to the
10
14
expiration of the current Term, and subject to the provisions of Section
3.02 hereof, fund such Purchaser Group's Pro Rata Share of such Increase in
amounts to be allocated among the Committed Purchasers based on their
respective Committed Percentages. Each funding of a Purchaser Group's Pro
Rata Share of an Increase shall be paid by the related Conduit Purchasers
or Committed Purchasers, as applicable, shall be made in accordance with
Section 2.05 hereof and shall represent the acquisition of Series 2000-1
Class A Certificate Interests in an amount equal to the increase in such
Purchaser Group's Pro Rata Share of the outstanding Class A Invested
Amount. Each Managing Agent shall provide prompt notice to the Program
Agent and the Program Agent shall provide prompt notice to the Seller if
the related Conduit Purchaser elects not to fund an Increase.
(b) Under no circumstances shall (i) any Purchaser fund any portion of
an Increase to the extent that, after giving effect to such funding, the
related Purchaser Group's Pro Rata Share of the Class A Invested Amount
would exceed its Purchaser Group Limit or (ii) any Committed Purchaser fund
any portion of an Increase to the extent that, after giving effect to such
funding, such Committed Purchaser's Committed Percentage of the Class A
Invested Amount would exceed its Commitment.
Section 2.03. CLASS A CERTIFICATES. On the Purchase Date, on each date
on which an Increase in the Class A Invested Amount is funded hereunder and on
each date on which each of the Class A Invested Amount and the Series 2000-1
Class A Purchase Limit is reduced, a duly authorized officer or employee of the
Program Agent shall make appropriate notations in its books and records of the
Purchase Price or the amount of such Increase or the amount of such reduction,
as applicable. Each of the Servicer, the Seller and the Trustee hereby
authorizes each duly authorized officer and employee of the Program Agent to
make such notations on the books and records as aforesaid and every such
notation made in accordance with the foregoing authority shall be prima facie
evidence of the accuracy of the information so recorded and shall be binding on
the Servicer, the Seller and the Trustee absent manifest error.
Section 2.04. REDUCTIONS TO THE SERIES 2000-1 CLASS A PURCHASE LIMIT.
The Seller may, from time to time, upon at least ten (10) Business Days' prior
written notice to the Program Agent, each Managing Agent and the Trustee, elect
to reduce the Series 2000-1 Class A Purchase Limit by an amount up to the
difference between the Series 2000-1 Class A Purchase Limit at such time and the
Class A Invested Amount at such time. Any such reduction shall be permanent and
shall reduce the Commitments of the Committed Purchasers hereunder ratably in
accordance with the Committed Percentages of the Committed Purchasers
immediately prior to such reduction.
Section 2.05. PROCEDURES FOR MAKING THE PURCHASE AND INCREASES.
(a) NOTICE OF THE PURCHASE AND INCREASES. The Purchase and each
Increase shall occur on a Business Day and shall be made or funded on
notice from the Seller (substantially in the form of Exhibit B hereto, in
the case of the Purchase, or Exhibit C hereto, in the case of an Increase)
to the Program Agent, to be received by the Program Agent not later than
1:00 p.m. (New York City time) or, in the case of the Purchase, unless such
Purchase Date is May 19, 2000, the third Business Day (or such shorter time
as may be agreed to by the Seller and the Program Agent), immediately
preceding the
11
15
Purchase Date or, in the case of an Increase, on the Business Day
immediately preceding the date of such Increase (with a copy provided to
each Managing Agent and the Trustee); provided that, if the Class A
Certificate Rate for the initial Interest Period for the resulting Increase
is the Assignee Rate to be calculated at a rate based on the Adjusted
Eurodollar Rate, then such notice must be received not later than 1:00 p.m.
(New York City time) on the third Business Day next preceding the date of
such Increase. Each notice shall specify the Purchase Price for each Class
A Certificate (which Purchase Prices shall be allocated among the Purchaser
Groups based upon each Purchaser Group's Pro Rata Share of the aggregate
amount funded on the Purchase Date) or the amount of the Increase (in each
case, not to be less than $1,000,000 and not more frequently than once per
week) and the Purchase Date or the date of the Increase.
(b) DELIVERY OF THE CLASS A CERTIFICATES. On the Purchase Date, the
Seller will deliver to each Managing Agent, on behalf of the Purchasers in
the related Purchaser Group, a Class A Certificate dated the Purchase Date,
duly executed by the Seller, registered in the name of such Managing Agent,
for the benefit of such Purchasers, and duly authenticated in accordance
with the provisions of the Pooling and Servicing Agreement, against
delivery by each Managing Agent, on behalf of the Purchasers in the related
Purchaser Group, to the Seller, of the Purchase Price for such Class A
Certificate.
(c) FUNDING OF THE PURCHASE AND INCREASES. On the Purchase Date and
any date on which an Increase is funded, the Conduit Purchasers or the
Committed Purchasers, as applicable, shall, upon satisfaction of the
applicable conditions set forth in Article IV, deposit in the Seller's
Account, (i) in the case of the Conduit Purchaser, the Purchase Price for
the applicable Class A Certificate or the applicable Purchaser Group's Pro
Rata Share of the amount of the Increase or (ii) in the case of each
Committed Purchaser, its Committed Percentage of the Purchase Price for the
applicable Class A Certificate or the applicable Purchaser Group's Pro Rata
Share of the amount of the Increase, in each case in same day funds.
(d) SELLER'S ACCOUNT. The Seller shall redesignate the special account
currently existing under the account name "The El-Bee Receivables
Corporation, Series 1997-1 Class A" maintained with Citibank in New York,
New York, as "The El-Bee Receivables Corporation, Series 2000-1 Class A,"
which account (the "SELLER'S ACCOUNT") shall be under the sole dominion and
control of the Seller.
Section 2.06. EXTENSION OF TERM. No earlier than 30 days, but no later
than 20 days, prior to the expiration of the Initial Term or any Extension Term,
the Program Agent may request an extension of such Term (such extended period
being an "EXTENSION TERM") and each Committed Purchaser may, in its sole and
absolute discretion, extend its Commitment by delivering to the Program Agent
and the applicable Managing Agent a written notice of such Committed Purchaser's
agreement to extend, which each Committed Purchaser shall deliver to the Program
Agent and the applicable Managing Agent no later than 10 days after such
Committed Purchaser receives any such request for extension; PROVIDED, HOWEVER,
that any such extension shall be ineffective if an Early Amortization Event has
occurred and is continuing at the time of the proposed commencement of such
Extension Term. Failure of a Committed Purchaser to deliver a notice of such
Committed Purchaser's intent to grant an Extension Term
12
16
shall be deemed to be an election by such Committed Purchaser not to grant an
Extension Term. Unless otherwise agreed by the Program Agent and the applicable
Managing Agents, if less than all of the Committed Purchasers have elected to
grant an Extension Term and the Program Agent or the applicable Managing Agents
have been unable to replace after reasonable efforts any Committed Purchaser
which has declined to grant an Extension Term, such request for an Extension
Term shall be withdrawn and the Program Agent will so notify the Managing
Agents, the Committed Purchasers and the Seller prior to the day on which the
Term expires.
ARTICLE III
FEES AND YIELD PROTECTION
Section 3.01. FEES. The Seller shall pay to each Managing Agent such
fees for its own account and for the account of the Purchaser Groups in such
amounts and at such times as set forth in their respective Fee Letters.
Section 3.02. INCREASED COSTS.
(a) If, due to either (i) the introduction or any change in or in the
interpretation of any law or regulation (other than any change by way of
imposition or increase of reserve requirements included in determining the
Adjusted Eurodollar Rate) or (ii) the compliance with any guideline or
request from any central bank or other Governmental Authority (whether or
not having the force of law), in each case occurring after the Purchase
Date, there shall be any increase in the cost, on an after-tax basis, to
any Affected Person of any commitment to make the Purchase, to fund
Increases, to provide liquidity in connection with the Purchase or any such
Increase or otherwise to maintain the investment in the Class A
Certificates in respect of which the Class A Certificate Rate is the
Assignee Rate determined by reference to the Adjusted Eurodollar Rate
(excluding for purposes of this Section 3.02 any such increased costs
resulting from (A) Taxes or Other Taxes (as to which Section 3.03 will
govern) and (B) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state (or any political subdivision thereof) under the laws of which such
Affected Person is organized or in which it is otherwise doing business)
then the Seller shall from time to time, upon demand by such Affected
Person (with a copy of such demand to the Program Agent), promptly pay to
the applicable Managing Agent, for the account of such Affected Person (as
a third party beneficiary), additional amounts sufficient to compensate
such Affected Person for such increased cost. Such demand shall be
accompanied by a reasonably detailed statement as to the amount of such
compensation and include a summary of the basis for such demand. A
certificate as to such amounts submitted to the Seller and the Program
Agent by such Affected Person shall be conclusive and binding for all
purposes, absent manifest effort.
(b) If (i) the introduction of or change in or in the interpretation
of any law or regulation, (ii) compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), in each case occurring after the
Purchase Date, affects or would affect the amount
13
17
of capital required or expected to be maintained by any Affected Person, or
any corporation controlling any Affected Person, and that the amount of
such capital is increased by or based upon the existence of such Affected
Person's commitment to make the Purchase, to fund Increases, to provide
liquidity in connection with the Purchase or any such Increase or otherwise
to maintain its investment in the Class A Certificates or Series 2000-1
Class A Certificate Interests, then, upon demand to the Seller by such
Affected Person (with a copy of such demand to the Program Agent) the
Seller shall promptly pay to the applicable Managing Agent for the account
of such Affected Person (as a third party beneficiary), from time to time
as specified by such Affected Person, additional amounts sufficient to
compensate such Affected Person, in light of the circumstances, to the
extent that such Affected Person reasonably determines such increase in
capital to be allocable to the existence of such Affected Person's
commitment to make the Purchase or fund Increases or otherwise maintain its
investment in the Class A Certificates or Series 2000-1 Class A Certificate
Interests. Such demand shall be accompanied by a reasonably detailed
statement as to the amount of such compensation and include a summary of
the basis for such demand. A certificate as to such amounts submitted to
the Seller and the Program Agent by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(c) Each Affected Person will promptly notify the Seller and the
Program Agent of any event of which it has knowledge which is reasonably
likely to entitle such Affected Person to compensation pursuant to this
Section 3.02; provided, however, that no failure to give or delay in giving
such notification shall adversely affect the rights of such Affected Person
to such compensation.
Section 3.03. TAXES.
(a) Except as provided in subsection (g) below, any and all payments
and deposits hereunder or under any other Transaction Document to or for
the benefit of any Affected Person (including any payments or deposits made
by the Servicer) shall be made free and clear of, and without deduction
for, any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
EXCLUDING, in the case of each Affected Person, taxes imposed on, or
measured by reference to, its overall net income or net profits (and
franchise taxes imposed in lieu thereof) by any of (i) the United States or
any state thereof, (ii) the jurisdiction under the laws of which such
Affected Person is organized or in which it is otherwise doing business or
(iii) any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments and deposits hereunder being hereinafter referred to as
"TAXES"). In addition to, without duplication, the Seller's indemnity
obligations under Section 7.03 of the Pooling and Servicing Agreement, if
the Seller, the Parent, the Trust or the Trustee shall be required by law
to deduct or pay any Taxes from or in respect of any sum required to be
paid or deposited hereunder or under any other Transaction Document or any
instrument delivered hereunder or thereunder, to or for the benefit of any
Affected Person, except as provided in subsection (g) below, (i) the Seller
shall increase the sum payable by it, the Parent, the Trust or the Trustee,
as the case may be, as may be necessary so that after making all required
deductions or payments (including deductions or payments
14
18
applicable to additional sums required to be paid or deposited under this
Section 3.03) the amount received by the relevant Affected Person, or
otherwise deposited hereunder or thereunder, shall be equal to the sum
which would have been so received or deposited had no such deductions been
made, (ii) the Seller shall make such deductions or payments, or cause such
deductions or payments to be made, and (iii) the Seller shall pay or cause
to be paid the full amount deducted or payable to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Seller shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that
arise from any payment or deposit made under any Transaction Document or
from the execution, delivery or registration of, performing under, or
otherwise with respect to, any Transaction Document (hereinafter referred
to as "OTHER TAXES").
(c) The Seller will indemnify each Affected Person for and hold it
harmless against the full amount of Taxes and Other Taxes as well as for
the full amount of any net increase in taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 3.03, imposed on or paid
by such Affected Person (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or
required to be paid with respect thereto. This indemnification shall be
made within 30 days from the date such Affected Person makes written demand
therefor to the Program Agent and the Seller. A certificate as to the
amount of such indemnification submitted to the Seller and the Program
Agent by such Affected Person setting forth the calculation thereof in
reasonable detail shall be conclusive and binding for all purposes, absent
manifest error.
(d) Within 30 days after the date of any payment of Taxes, the Seller
or the Trustee (as the case may be) shall furnish to the Program Agent, at
its address referred to in Section 8.02, the original or a certified copy
of a receipt evidencing such payment. In the case of any payment hereunder
by or on behalf of the Seller through an account or branch outside the
United States or by or on behalf of the Seller by a payor that is not a
United States person, if the Seller determines that no Taxes are payable in
respect thereof, the Seller shall furnish, or shall cause such payor to
furnish, to the Program Agent, at such address, an Opinion of Counsel
acceptable to the Program Agent stating that such payment is exempt from
Taxes. For purposes of these Sections 3.03(d) and 3.03(f), the terms
"UNITED STATES" and "UNITED STATES PERSON" have the meanings specified in
Section 7701 of the Code.
(e) Notwithstanding the foregoing and any other provisions of this
Section 3.03, obligations of the Trustee, if any, under this Section 3.03
shall be payable only out of the Trust Assets.
(f) Each Committed Purchaser that is not created or organized under
the laws of the United States or a political subdivision thereof shall
deliver to the Seller and the Program Agent on the Purchase Date or the
date on which such Purchaser becomes a party hereto or such person
otherwise becomes entitled to payments in connection with this Agreement a
true and accurate certificate executed in duplicate by a duly authorized
15
19
officer of such Committed Purchaser to the effect that such Committed
Purchaser is eligible to receive distributions hereunder without deduction
or withholding of United States federal income tax (A) under the provisions
of an applicable tax treaty concluded by the United States (in which case
the certificate shall be accompanied by two duly completed and executed
copies of IRS Form W-8BEN claiming treaty benefits (or any successor or
substitute form or forms)), or (B) because its income from the Class A
Certificates is effectively connected with a U.S. trade or business (in
which case the certificate shall be accompanied by two duly completed
copies of IRS Form W-8ECI (or any successor or substitute form or forms)).
If any form or document referred to in this subsection (f) requires the
disclosure of information, other than information necessary to compute the
tax payable and information required on the date hereof by IRS Forms W-8BEN
or W-8ECI, that a Committed Purchaser reasonably considers to be
confidential, such Committed Purchaser shall give notice thereof to the
Seller and the Program Agent and shall not be obligated to include in such
form or document such confidential information.
(g) For any period with respect to which a Committed Purchaser has
failed to provide the Seller and the Program Agent with the appropriate
form described in subsection (f) above (other than if such failure is due
to a change in law occurring after the date on which a form originally was
required to be provided by such Committed Purchaser or if such form
otherwise is not required under subsection (f) above), the Seller shall not
be required to make any additional payments under subsection (a) above nor
shall such Committed Purchaser be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States;
provided, however, that should a Committed Purchaser become subject to
Taxes because of its failure to deliver a form required hereunder, the
Seller shall take such steps as such Committed Purchaser shall reasonably
request to assist such Committed Purchaser to recover such Taxes.
(h) Notwithstanding anything to the contrary herein, following a final
determination or Opinion of Counsel based on a Change in Tax Law that the
Trust will be treated as a partnership for federal income tax purposes, the
Seller or the Trustee shall be entitled to withhold any amounts required to
be withheld with respect to an Affected Person under Section 1446 of the
Code ("SECTION 1446 AMOUNTS") and to pay or cause such amounts to be paid
to the relevant taxation authority as authorized in accordance with
applicable law, and such amounts shall be deemed to have been paid to the
Affected Person for all purposes of this Agreement, including Section
3.03(a). If a Section 1446 Amount is withheld with respect to an Affected
Person for a taxable period other than one with respect to which such
Affected Person as of the date of withholding has filed or was required to
file a U.S. federal income tax return, the Trustee shall (i) promptly
provide the Affected Person with appropriate written evidence reflecting
the amount of and the basis for such withholding and (ii) pay to such
Affected Person such additional interest as may accrue on such Section 1446
Amount from the date such amount was deemed paid to the Affected Person
hereunder through the due date of the first federal income tax return
(treating any required payment of estimated tax as a United States federal
income tax return for such purpose) on which such Affected Person is able
to take into account or otherwise request a credit or refund of such
Section 1446 Amount, at a
16
20
rate equal to the interest rate that would otherwise be applicable to the
principal amount of the relevant Class A Certificates.
Section 3.04. COST AND EXPENSES.
(a) In addition to the rights of indemnification granted to the
Indemnified Parties pursuant to Section 7.03 of the Pooling and Servicing
Agreement, the Seller agrees to pay on demand (i) all costs and expenses
(including reasonable fees and expenses of counsel) of the Trustee, the
Program Agent, the Purchasers and any general partner, limited partner or
shareholder of the Purchasers in connection with the arrangement,
preparation, execution, delivery, closing, administration, modification,
amendment, extension or waiver of the Transaction Documents (including (A)
all due diligence, collateral review, syndication, transportation,
computer, duplication, appraisal, audit, insurance, consultant, search,
filing and recording fees and expenses, (B) the reasonable fees and
expenses of counsel for each Managing Agent with respect thereto (including
with respect to advising each Managing Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights
or interests, under the Transaction Documents, with respect to negotiations
with the Parent, the Seller, the Servicer or any Originator or with other
creditors of any such Person or any of its Subsidiaries arising out of any
Early Amortization Event or Servicer Default, or any event or circumstance
that may give rise to an Early Amortization Event or Servicer Default and
with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto), and (C)
all other costs and expenses in connection therewith incurred by the
Purchasers or any general or limited partner or shareholder of the
Purchasers, including the reasonable fees and out-of-pocket expenses of
counsel for the Purchasers or any counsel for any general or limited
partner or shareholder of the Purchasers with respect to (1) advising the
Purchasers or any general or limited partner or shareholder of the
Purchasers as to its rights and remedies under the Transaction Documents or
(2) advising the Purchasers or any general or limited partner or
shareholder of the Purchasers as to matters relating to the Purchaser's
operations with respect to the transactions contemplated under the
Transaction Documents), (ii) all reasonable costs and expenses of the
Trustee, the Program Agent, the Purchasers, any general partner, limited
partner or shareholder of the Purchasers in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of the
Transaction Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including the reasonable fees and expenses of counsel for
the Trustee, the Program Agent, the Purchasers, any general partner,
limited partner or shareholder of the Purchasers with respect thereto and
(iii) all costs and expenses of the Trustee, the Program Agent, the
Managing Agents, the Purchasers, and any general, limited partner or
shareholder of the Purchasers incurred as a result of the delay in or
omission to make any payment with respect to amounts due under clauses (i),
(ii) and (iii) hereof.
(b) If the Parent, the Seller, the Servicer or any Originator fails to
pay when due any costs, expenses or other amounts payable by it under any
Transaction Document, including fees and expenses of counsel and
indemnities, such amount may be paid on
17
21
behalf of such Person by the Program Agent, any Managing Agent or any
Committed Purchaser, in its sole discretion.
Section 3.05. SHARING OF PAYMENTS, ETC. If any Purchaser shall obtain at
any time any payment or other recovery (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on account of any
Obligation due and payable to such Purchaser hereunder (other than pursuant to
Section 3.02, 3.03 or 3.04 of this Agreement) which is in excess of its pro rata
share (according to the proportion of (i) the amount of such Obligations due and
payable to such Purchaser at such time to (ii) the aggregate amount of such
Obligations due and payable to all Purchasers hereunder at such time) of
payments on account of the Obligations due and payable to all Purchasers
hereunder at such time obtained by all Liquidity Providers at such time or (b)
on account of Obligations owing (but not due and payable) to such Purchaser
hereunder at such time in excess of its pro rata share (according to the
proportion of (i) the amount of such Obligations owing to such Purchaser at such
time to (ii) the aggregate amount of such Obligations owing (but not due and
payable) to all Purchasers hereunder at such time) of payments on account of the
Obligations owing (but not due and payable) to all Purchasers hereunder at such
time obtained by all Purchasers at such time, such Purchaser shall forthwith
purchase from the other Purchasers such participations in the Obligations due
and payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Purchaser to share the excess payment or other recovery ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Purchaser, such purchase
from each other Purchaser shall be rescinded and such other Purchaser shall
repay to the purchasing Purchaser the purchase price to the extent of such
Purchaser's ratable share (according to the proportion of (i) the purchase price
paid to such Purchaser to (ii) the aggregate purchase price paid to all
Purchasers) of such recovery together with an amount equal to such Purchaser's
ratable share (according to the proportion of (i) the amount of such other
Purchaser's required repayment to (ii) the total amount so recovered from the
purchasing Purchaser) of any interest or other amount paid or payable by the
purchasing Purchaser in respect of the total amount so recovered. The Seller
agrees that the Purchaser so purchasing a participation from another Purchaser
pursuant to this Section 3.05 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Purchaser were the direct creditor of
the Trust in the amount of such participation.
ARTICLE IV
CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES
Section 4.01. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The making of
the Purchase hereunder is subject to the Program Agent having received on or
before the Purchase Date the following, each dated such date (unless otherwise
specified), in form and substance satisfactory to the Managing Agents:
(a) Certified copies of the resolutions of the Board of Directors of
the Parent, the Servicer, each other Originator, the Seller and the Trustee
approving each Transaction
18
22
Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental and other
third party approvals and consents, if any, with respect to each
Transaction Document.
(b) A copy of the charter of the Parent, the Servicer, each other
Originator and the Seller and each amendment thereto, certified (as of a
date reasonably near the Purchase Date) by the Secretary of State of the
jurisdiction of its incorporation as being a true and correct copy thereof.
(c) A copy of a certificate of the Secretary of State of each of the
jurisdiction of its incorporation and the jurisdiction in which it
maintains its principal place of business, dated reasonably near the
Purchase Date, certifying that the Parent, the Servicer, each other
Originator and the Seller are in good standing under the laws of each such
jurisdiction.
(d) A certificate of the Parent, the Servicer, each other Originator
and the Seller, signed on behalf of the Parent, the Servicer, each other
Originator and the Seller, respectively, by its President or a Vice
President, dated the Purchase Date (the statements made in which
certificate shall be true on and as of the Purchase Date), certifying as to
(A) the absence of any amendments to its charter since the date of the
certificate referred to in Section 4.01(b), (B) a true and correct copy of
its bylaws (and all amendments thereto) as in effect on the Purchase Date,
(C) its due incorporation and good standing as a corporation organized
under the laws of the jurisdiction of its incorporation and the absence of
any proceeding for its dissolution or liquidation, (D) the truth of its
representations and warranties contained in the Transaction Documents as
though made on and as of the Purchase Date and (E) the absence of any event
occurring and continuing, or resulting from the Purchase, that constitutes,
or with notice or the lapse of time would constitute, an Early Amortization
Event or a Termination Event (as defined in the Purchase Agreements).
(e) A certificate of the Secretary or an Assistant Secretary (or, in
the case of the Trustee, a Vice President, Assistant Vice President or
Associate) of the Parent, the Servicer, each other Originator, the Seller
and the Trustee certifying the names and true signatures of the officers of
the Parent, the Servicer, each other Originator, the Seller and the
Trustee, respectively, authorized to sign the Transaction Documents to
which such Person is a party and any other documents contemplated hereunder
or thereunder, and appropriately evidencing the incumbency of such officers
and such Secretary or Assistant Secretary.
(f) A certificate of the Trustee, signed on its behalf by its Director
or a Vice President, Assistant Vice President or Associate, dated the
Purchase Date (the statements made in which certificate shall be true on
and as of the Purchase Date), certifying as to (A) a true and correct copy
of its bylaws (and all amendments thereto) as in effect on the Purchase
Date and (B) the due authentication of the Class A Certificates.
(g) A favorable opinion of Jones, Day, Reavis & Pogue, counsel for the
Parent, the Servicer, each other Originator and the Seller, in form and
substance
19
23
satisfactory to the Managing Agents which shall include, without
limitation, (A) an opinion as to the perfection of the transfers of the
Receivables, (B) an opinion as to enforceability and (C) a general
corporate opinion.
(h) A favorable opinion of Jones, Day, Reavis & Pogue, counsel for the
Parent, the Servicer, each other Originator and the Seller, in form and
substance satisfactory to the Managing Agents which, shall include (A) a
"true sale" opinion with respect to the sales of Receivables from each
Originator to the Seller or another Originator, as the case may be, and (B)
an opinion relating to the likelihood of a substantive consolidation of any
Originator with the Seller.
(i) A Tax Opinion of Jones, Day, Reavis & Pogue, counsel for the
Parent, the Servicer, each other Originator and the Seller in form and
substance acceptable to the Managing Agents.
(j) A favorable opinion of Seward & Kissel LLP, counsel for the
Trustee, in form and substance satisfactory to the Managing Agents.
(k) Stamped-receipt copies or other evidence of filing of proper
financing statements covering the Receivables, naming the applicable
Originator as seller/debtor, the Seller or another Originator, as the case
may be, as purchaser/secured party and the Trustee or Seller, as the case
may be, as assignee, or other similar instruments or documents, as may be
necessary or, in the opinion of the Program Agent, desirable under the UCC
of any appropriate jurisdiction or other applicable law to perfect the
Seller's first priority interest in the Receivables and the assignment
thereof by the Seller to the Trustee.
(l) Stamped-receipt copies or other evidence of filing of proper
financing statements covering the Receivables and the other Trust Assets,
naming the Seller as seller/debtor and the Trustee as purchaser/secured
party, or other similar instruments or documents, as may be necessary or,
in the opinion of the Program Agent, desirable under the UCC of any
appropriate jurisdiction or other applicable law to perfect the Trustee's
first priority interest in the Trust Assets.
(m) Certified copies of completed requests for information or a
similar search report certified by a party acceptable to the Program Agent
dated a date reasonably near the Purchase Date, listing all effective
financing statements which name as debtor any Originator or the Seller
(under such Originator's or Seller's present name and any previous name)
and which are filed in the jurisdictions in which filings were made
pursuant to Sections 4.01(k) and 4.01(l) together with copies of such
financing statements (none of which shall cover any property which may be
Receivables or Collections).
(n) A Collection Account Letter substantially in the form of Exhibit E
to the Pooling and Servicing Agreement, in respect of each Collection
Account maintained by the Servicer, duly executed by each Person with whom
such Collection Account is maintained.
20
24
(o) An executed subordinated note substantially in the form of Exhibit
A to the Purchase Agreement between the Seller and The El-Bee Chargit
Corp., to be delivered by the Seller thereto.
(p) The Class A Certificates, delivered in accordance with the
provisions of Section 2.05(b).
(q) Evidence that all bank accounts required to be established and
maintained under any Transaction Document shall have been established.
(r) Each Transaction Document duly executed by each party thereto.
(s) Evidence of payment of all related fees and expenses then due and
payable in connection with the Transaction Documents.
(t) Evidence that an amount equal to the Reserve Account Required
Balance has been deposited into the Reserve Account.
(u) A certificate of the Parent, the Servicer, each other Originator
and the Seller, signed on behalf of the Parent, the Servicer, each other
Originator and the Seller, respectively, by its President or a Vice
President, dated the Purchase Date (the statements made in which
certificate shall be true on and as of the Purchase Date), certifying as to
(i) the accuracy of facts and assumptions contained in the legal opinions
required to be delivered pursusant to this Section 4.01 and (ii) compliance
by the Parent, the Servicer, each other Originator and the Seller, as
applicable, with all the covenants set forth in Sections 2.05 and 3.03(b)
of the Pooling and Servicing Agreement applicable to each of them.
Section 4.02. CONDITIONS PRECEDENT TO THE PURCHASE AND ALL INCREASES.
The making of the Purchase hereunder and the funding of each Increase pursuant
to Section 2.02 are subject to the conditions precedent that, on the Purchase
Date or the date of such Increase, the following statements shall be true (and
the acceptance by the Seller of the proceeds of such Purchase or Increase shall
constitute a representation and warranty by the Seller that on the Purchase Date
or the date of such Increase such statements are true):
(a) No event or condition has occurred and is continuing that
constitutes, or with notice or lapse of time or both would constitute an
Early Amortization Event or Servicer Default;
(b) The Revolving Period shall not have ended and an Early
Amortization Period shall not have occurred and be continuing;
(c) The representations and warranties made by the Parent, the
Originators, the Seller and the Servicer in each Transaction Document to
which it is a party shall be true and correct in all material respects as
if repeated on such date (except only to the extent such representation or
warranty is expressly limited to a specific date) with respect to the facts
and circumstances then existing;
21
25
(d) The Pooling and Servicing Agreement, Series 2000-1 Supplement,
Purchase Agreements, Parent Undertaking Agreement, Intercreditor Agreement
and each other Transaction Document shall be in full force and effect;
(e) After making the Purchase or funding such Increase, the Class A
Invested Amount shall not exceed the Series 2000-1 Class A Purchase Limit
on such day;
(f) The Managing Agents shall have received by 1:00 p.m. (New York
City time), on the Purchase Date or the date of such Increase the Daily
Report, which shall be prepared on a pro forma, basis and shall show that
the Seller is in compliance with all of the Transaction Documents (after
giving effect to the Purchase or such Increase) to the extent a showing of
such compliance is called for in the form thereof;
(g) Each Originator shall have delivered to the Seller and the Program
Agent the accounts receivable aged trial balance as of the Purchase Date or
the date of such Increase of each such Originator (which if in magnetic
tape or diskette format shall be compatible with the Seller's, or, if
applicable, the Servicer's computer equipment);
(h) The Servicer shall have delivered to the Seller, in form and
substance satisfactory to the Seller and each Managing Agent, a completed
Monthly Servicer's Report, together with a listing of the Accounts under
which all Receivables subject to each Transfer through the date of such
Purchase or Increase have arisen, for the most recently ended reporting
period for which such Monthly Servicer's Report as of the Purchase Date or
the date of such Increase is required to be delivered pursuant to Section
3.04(b) of the Pooling and Service Agreement and, if the Servicer shall
have been given not less than three Business Days' prior written notice,
containing such additional information as may be reasonably requested by
the Seller and any Managing Agent;
(i) Each Originator shall have marked its master data processing and
computer records relating to the Receivables which are the subject of each
Transfer through the date of such Purchase or Increase, and the Accounts
under which such Receivables have arisen, with a legend, acceptable to the
Program Agent, stating that such Receivables and Collections with respect
thereto and other proceeds thereof, have been sold in accordance with the
Transaction Documents;
(j) The Parent shall have entered into the Hedge Agreement, which
shall be in form and substance satisfactory to the Managing Agents;
(k) The Program Agent shall have received any other documentation and
opinions required to be delivered with respect to the Transaction Documents
and such other approvals, opinions or documents as reasonably requested by
the Managing Agents with not less than three (3) Business Days' prior
written notice;
(l) The combined aggregate notional amount of the Swaps and/or Caps
shall be equal to at least the outstanding Class A Invested Amount after
giving effect to such Purchase or Increase;
22
26
(m) The credit balance in the Reserve Account shall be equal to at
least the Reserve Account Required Balance; and
(n) The rating of the senior long-term debt obligations of the Parent
shall not be less than (i) "BB-" if rated by S&P, (ii) "Ba3" if rated by
Moody's or (iii) a rating equivalent to "BB/Ba2" as determined by each
Managing Agent in its sole judgment in accordance with its customary
practices.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
hereby agrees that each of the respective representations and warranties made by
it in the Pooling and Servicing Agreement is deemed made hereunder as of the
date hereof and as of the Purchase Date as a representation and warranty to the
Program Agent, the Managing Agents and the Purchasers as if originally made
under this Agreement.
Section 5.02. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. The
Servicer hereby agrees that each of the respective representations and
warranties made by it in the Pooling and Servicing Agreement is deemed made
hereunder as of the date hereof and as of the Purchase Date as a representation
and warranty to the Program Agent, the Managing Agents and the Purchasers as if
originally made under this Agreement.
ARTICLE VI
THE PROGRAM AGENT; THE MANAGING AGENTS
Section 6.01. AUTHORIZATION AND ACTION OF THE PROGRAM AGENT. Each
Conduit Purchaser, Committed Purchaser and Managing Agent hereby appoints and
authorizes the Program Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Transaction Documents as
are delegated to the Program Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto.
Section 6.02. THE PROGRAM AGENT'S RELIANCE, ETC. Neither the Program
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or the Program Agent under or
in connection with the Transaction Documents, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, the Program Agent (a) may consult with independent legal counsel
(including counsel for the Trustee, the Seller, the Seller or the Servicer),
independent certified public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, (b)
makes no representation or warranty to the Parent, any Originator, the Seller,
the Seller, the Servicer or any Beneficiary and shall not be responsible to the
Parent, any Originator, the Seller, the Seller, the Servicer or any Beneficiary
for any statements, representations or warranties made in or in connection with
this Agreement or any of the
23
27
Transaction Documents, (c) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
the Transaction Documents on the part of the Trustee, the Seller, the Seller,
any Originator, the Parent or the Servicer or to inspect the property (including
the books and records) of the Trust, the Trustee, the Seller, the Seller, any
Originator, the Parent or the Servicer, (d) shall not be responsible to the
Parent, any Originator, the Seller, the Seller, the Servicer or any Beneficiary
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Class A Certificates or any other
Transaction Document or the condition or value of any Trust Asset or the
creation, perfection or priority of any interest therein created or purported to
be created under or in connection with the Transaction Documents (except for the
execution by the Program Agent of, and legality, validity and enforceability
against the Program Agent of its obligations under, the Transaction Documents to
which the Program Agent is a party), and (e) shall incur no liability under or
in respect of the Transaction Documents by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing (which
may be by facsimile or telex) believed by it to be genuine and signed or sent by
the proper party or parties; except in each case for gross negligence or willful
misconduct on the part of the Program Agent.
Section 6.03. THE PROGRAM AGENT AND AFFILIATES. CNAI and its Affiliates
(including Citibank) may generally engage in any kind of business with the
Seller, the Seller, the Servicer, any Originator or the Parent, any of their
respective Affiliates and any Person who may do business with or own securities
of the Servicer, any Originator, the Parent or any of their respective
Affiliates, all as if CNAI were not the Program Agent and without any duty to
account therefor to the Parent, any Originator, the Seller, the Servicer or any
Beneficiary.
Section 6.04. INDEMNIFICATION OF THE PROGRAM AGENT. Each Managing Agent
agrees to indemnify the Program Agent (to the extent not reimbursed by Seller),
ratably in accordance with its respective Purchaser Group's Pro Rata Share, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Program Agent (in its capacity as such) in any way relating to or arising out of
this Agreement and any of the Transaction Documents or such action taken or
omitted by the Program Agent hereunder or thereunder, provided that such
Committed Purchaser shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Program Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Committed
Purchaser agrees to reimburse the Program Agent, ratably in accordance with its
respective Purchaser Group's Pro Rata Share, promptly upon demand for any
out-of-pocket expenses (including counsel fees) incurred by the Program Agent in
connection with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement and the
Transaction Documents, to the extent that such expenses are incurred in the
interests of or otherwise in respect of the Conduit Purchasers or the Committed
Purchasers hereunder and/or thereunder and to the extent that the Program Agent
is not reimbursed for such expenses by the Seller.
24
28
Section 6.05. PAYMENTS BY THE PROGRAM AGENT. Unless specifically
allocated to a Conduit Purchaser or a Committed Purchaser pursuant to the terms
of this Agreement, all amounts received by the Program Agent, if any, on behalf
of the Conduit Purchasers or Committed Purchasers shall be paid by the Program
Agent to the applicable Managing Agent (at the account specified in writing to
Program Agent) in accordance with the related Purchaser Group's Pro Rata Share
on the Business Day received by the Program Agent, unless such amounts are
received after 12:00 noon (New York time) on such Business Day, in which case
the Program Agent shall use its reasonable efforts to pay such amounts to such
Managing Agent, on behalf of the related Purchaser, on such Business Day, but,
in any event, shall pay such amounts to such Managing Agent, on behalf of the
related Purchaser, not later than 11:00 a.m. (New York time) on the following
Business Day.
Section 6.06. AUTHORIZATION AND ACTION OF MANAGING AGENT. (a) Each
Conduit Purchaser and each Committed Purchaser of each Purchaser Group hereby
appoints and authorizes the Managing Agent with respect to such Purchaser Group
to take such action as agent on its behalf and to exercise such powers under
this Agreement and the Transaction Documents as are delegated to the Managing
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. In furtherance, and without limiting the
generality, of the foregoing, each Conduit Purchaser and each Committed
Purchaser hereby appoints the related Managing Agent as its agent to execute and
deliver all further instruments and documents, and agrees to take all further
action that the related Managing Agent may deem necessary or appropriate or that
a Conduit Purchaser or a Committed Purchaser may reasonably request in order to
perfect, protect or more fully evidence the interests transferred or to be
transferred from time to time by Seller hereunder, or to enable any of them to
exercise or enforce any of their respective rights hereunder or under the
related Certificate, and such other instruments or notices, as may be necessary
or appropriate for the purposes stated hereinabove. The Conduit Purchasers and
Committed Purchasers may direct the related Managing Agent (i) to direct the
Program Agent to take any action which is incidental to the actions specifically
delegated to the Program Agent hereunder and (ii) not to take or to cease taking
any action which is incidental to the actions specifically delegated to the
Program Agent hereunder. With respect to actions which are incidental to the
actions specifically delegated to a Managing Agent hereunder, a Managing Agent
shall not be required to take any such incidental action hereunder, but shall be
required to act or to refrain from acting (and shall be fully protected in
acting or refraining from acting) upon the direction of the related Conduit
Purchaser and Committed Purchaser; provided, however, that no Managing Agent
shall be required to take any action hereunder if the taking of such action, in
the reasonable determination of such Managing Agent, shall be in violation of
any applicable law, rule or regulation or contrary to any provision of this
Agreement or shall expose such Managing Agent to liability hereunder or
otherwise. Upon the occurrence and during the continuance of any Early
Amortization Event, the Managing Agent shall take no action hereunder (other
than ministerial actions or such actions as are specifically provided for
herein) without the prior consent of the related Conduit Purchaser and Committed
Purchaser. The Managing Agent shall not, without the prior written consent of
the related Conduit Purchaser (if any interest is held by a Conduit Purchaser at
such time) and Committed Purchaser, agree to (i) amend, modify or waive any
provision of this Agreement in any way which would (A) reduce or impair
Collections or the payment of fees payable hereunder to the Conduit Purchasers
or Committed Purchasers or delay the scheduled dates for payment of such
amounts, (B) increase the Servicing Fee (other than as permitted pursuant to the
Pooling and
25
29
Servicing Agreement), (C) modify any provisions of this Agreement or the Pooling
and Servicing Agreement relating to the timing of payments required to be made
by Seller or Servicer or the application of the proceeds of such payments, (D)
permit the appointment of any Person (other than the Trustee) as Successor
Servicer. In addition, each Managing Agent agrees that it shall not agree to any
amendment of this Agreement not specifically described in the two preceding
sentences without the consent of the related Conduit Purchaser and Committed
Purchaser. In the event the Managing Agent requests a Person's consent pursuant
to the foregoing provisions and the Managing Agent does not receive a response
to such request (either positive or negative) from such Person within ten (10)
Business Days of such Person's receipt of such request, then such Person (and
its percentage interest hereunder) shall be disregarded in determining whether
the Managing Agent shall have obtained sufficient consent hereunder.
(b) Each Managing Agent shall exercise such rights and powers vested in
it by this Agreement and the Transaction Documents, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
Section 6.07. MANAGING AGENT'S RELIANCE, ETC. Neither any Managing
Agent nor any of its directors, officers, agents or employees shall be liable to
any Conduit Purchaser or Committed Purchaser for any action taken or omitted to
be taken by it or them as Managing Agent under or in connection with this
Agreement or any of the Transaction Documents, except for its or their own gross
negligence or willful misconduct. Without limiting the foregoing, the Managing
Agent: (i) may consult with legal counsel (including counsel for Seller or
Servicer), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Conduit Purchaser or any Committed
Purchaser and shall not be responsible to any Conduit Purchaser or any Committed
Purchaser for any statements, warranties or representations made in or in
connection with this Agreement; (iii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the Transaction Documents on the part of
Seller or Servicer or to inspect the property (including the books and records)
of Seller or Servicer; (iv) shall not be responsible to any Conduit Purchaser or
any Committed Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the
Certificates or any other instrument or document furnished pursuant hereto or
thereto; and (v) shall incur no liability to any Conduit Purchaser or Committed
Purchaser under or in respect of this Agreement or any of the Transaction
Documents by acting upon any notice (including notice by telephone), consent,
certificate or other instrument or writing (which may be by telex) believed by
it to be genuine and signed or sent by the proper party or parties.
Section 6.08. THE MANAGING AGENTS AND AFFILIATES. Each Managing Agent
and its Affiliates may generally engage in any kind of business with the Seller,
the Servicer, any Originator or the Parent, any of their respective Affiliates
and any Person who may do business with or own securities of the Servicer, any
Originator, the Parent or any of their respective Affiliates, all as if such
Managing Agent were not a Managing Agent and without any duty to account
therefor to the Parent, any Originator, the Seller, the Servicer or any
Beneficiary.
26
30
Section 6.09. INDEMNIFICATION OF THE MANAGING AGENT. Other than with
respect to the Purchaser Group for which FRSI acts as Managing Agent, each
Committed Purchaser agrees to indemnify the Managing Agent for its Purchaser
Group (to the extent not reimbursed by Seller), ratably in accordance with its
respective Committed Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Managing Agent (in its capacity as
such) in any way relating to or arising out of this Agreement and any of the
Transaction Documents or such action taken or omitted by the Managing Agent
hereunder or thereunder, provided that such Committed Purchaser shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Managing Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, other than with respect to the Purchaser Group for
which FRSI acts as Managing Agent, each Committed Purchaser agrees to reimburse
the Managing Agent, ratably in accordance with its respective Committed
Percentage, promptly upon demand for any out-of-pocket expenses (including
counsel fees) incurred by the Managing Agent in connection with the
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and the Transaction Documents,
to the extent that such expenses are incurred in the interests of or otherwise
in respect of the Conduit Purchasers or the Committed Purchasers hereunder
and/or thereunder and to the extent that the Managing Agent is not reimbursed
for such expenses by the Seller
Section 6.10. PAYMENTS BY A MANAGING AGENT. Unless specifically
allocated to a Conduit Purchaser or a Committed Purchaser pursuant to the terms
of this Agreement, all amounts received by a Managing Agent on behalf of the
related Conduit Purchaser(s) or Committed Purchaser(s) shall be paid by such
Managing Agent to such Conduit Purchaser(s) or Committed Purchaser(s), as
applicable (at the account specified in writing to such Managing Agent) on the
Business Day received by such Managing Agent, unless such amounts are received
after 12:00 noon (New York time) on such Business Day, in which case such
Managing Agent shall use its reasonable efforts to pay such amounts, on such
Business Day, but, in any event, shall pay such amounts not later than 11:00
a.m. (New York time) the following Business Day.
Section 6.11. PURCHASER CREDIT DECISION. Each Purchaser acknowledges
that it has, independently and without reliance upon the Program Agent, any
Managing Agent or any other Purchaser and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Purchaser also acknowledges that it
will, independently and without reliance upon the Program Agent, any Managing
Agent or any other Purchaser and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
ARTICLE VII
ASSIGNMENTS AND PARTICIPATIONS
27
31
Section 7.01. ASSIGNMENT.
(a) At any time and from time to time, any Conduit Purchaser may, by
notice and delivery to the Program Agent of a fully executed assignment and
assumption agreement assign all or any portion of its rights and
obligations (which portion shall in no event evidence less than $5,000,000
of the Class A Invested Amount then held by such Conduit Purchaser or, if
less, the entire Class A Invested Amount so held by such Conduit Purchaser)
hereunder to (i) any Conduit Assignee or to any Purchaser or (ii) any other
Person (including any Liquidity Provider), provided that, in the case of
clause (ii), (A) such Person is an Eligible Assignee and (B) such
assignment shall comply with any applicable legal requirements including
the Securities Act. The Program Agent shall, promptly upon its receipt of
any such notice and assignment and assumption agreement, notify the Seller,
the Servicer and the Trustee of 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
assignor hereunder.
(b) At any time and from time to time, any Committed Purchaser may, by
notice and delivery to the Program Agent of a fully executed Assignment and
Acceptance, assign to any other Person, all or any portion of its Series
2000-1 Class A Certificate Interest or its interest therein (which portion
shall in no event evidence less than $5,000,000 of the Class A Invested
Amount then held by such Committed Purchaser or, if less, the entire Class
A Invested Amount so held by such Committed Purchaser); provided that (i)
such assignee is an Eligible Assignee and (ii) such assignment shall comply
with any applicable legal requirements including the Securities Act. Any
Committed Purchaser making any such assignment shall provide notice to the
Seller and the Servicer thereof. The assignee shall, upon the effectiveness
of such Assignment and Acceptance 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 the assignor hereunder.
(c) The Program Agent agrees to cooperate with the Seller to effect
any assignment under this Section 7.01, and the Seller agrees to execute or
obtain such other documentation as may be reasonably requested by any
Purchaser in order to effectuate any assignment under this Section 7.01
(provided that the Seller shall not have any obligation to amend any
Transaction Document in connection therewith), the costs of such
documentation to be borne such Purchaser.
Section 7.02. RIGHTS OF ASSIGNEE. Upon any assignment in accordance
with this Article VII, (a) the assignee receiving such assignment shall have all
of the rights of such assignor hereunder with respect to the Series 2000-1
Certificate or interest therein (or portion thereof) or rights associated
therewith being assigned and (b) all references to such assignor in the
Transaction Documents shall be deemed to apply to such assignee to the extent of
its interest therein and in the related Collections.
Section 7.03. NOTICE OF ASSIGNMENT. Each assignor shall provide notice
to the Seller, the Program Agent and the Trustee of any assignment of any Series
2000-1 Certificate or
28
32
interest therein (or portion thereof) or rights associated therewith by such
assignor to any assignee.
Section 7.04. REGISTER. The Program Agent shall maintain a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Purchasers and the Commitment of
each Purchaser from time to time (the "REGISTER"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Seller, the Program Agent, the Trustee and the Purchasers may treat each Person
whose name is recorded in the Register as a Purchaser hereunder for all purposes
of the Transaction Documents. The Register shall be available for inspection by
the Seller, the Parent, the Trustee or any Purchaser at any reasonable time and
from time to time upon reasonable prior notice.
Section 7.05. PARTICIPATIONS. At any time and from time to time any
Purchaser may sell participations to one or more banks or other entities in or
to all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Series 2000-1 Class A
Certificates owned by it); provided, however, that (i) such Purchaser's
obligations under this Agreement (including its Commitment if such Purchaser is
a Committed Purchaser) shall remain unchanged, (ii) such Purchaser shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Seller, the Program Agent and the Purchasers shall
continue to deal solely and directly with such Purchaser in connection with the
rights of such Purchaser and the obligations of such Purchaser under this
Agreement and (iv) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Transaction
Document, or any consent to any departure by any Person therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Class A Certificates or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, postpone
any date fixed for any payment of principal of, or interest on, the Class A
Certificates or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or release all or substantially all of the
Receivables. Anything herein to the contrary notwithstanding, the Seller shall
not, at any time, be obligated to pay to any Purchaser any sum in excess of the
sum the Seller would have been obligated to pay to such Purchaser hereunder if
such Purchaser had not sold any participation in its rights and obligations
under this Agreement.
Section 7.06. RESTRICTIONS ON ASSIGNMENTS AND PARTICIPATIONS.
Notwithstanding any provision of this Agreement to the contrary, no Purchaser
shall assign any of its rights or obligations hereunder to any Person that is
not a United States Person (as defined in Section 7701(a)(30) of the Internal
Revenue Code) unless such Person shall have provided the Seller and the Program
Agent with the forms described in Section 3.03(f). Notwithstanding Sections 7.01
and 7.05, no Purchaser shall be entitled to assign (or sell participations in)
all or any portion of its rights and obligations hereunder to (i) a partnership,
grantor trust or S corporation, as such terms are defined in the Internal
Revenue Code or (ii) any Person if, following such assignment or sale to such
other Person, any Purchaser Group would have more than fifteen (15) beneficial
owners of Certificates (taking into account the attribution rules of Treasury
Regulation Section 1.7704-1(h)(3)). Notwithstanding the preceding sentence, each
Conduit Purchaser shall be entitled to assign (or sell a participation in) its
rights and obligations hereunder to a Committed Purchaser or other Eligible
Assignee, provided that the Seller receives evidence reasonably
29
33
satisfactory to it that such sale or assignment will not cause any Purchaser
Group to have more than fifteen (15) beneficial owners (taking into account the
attribution rules of Treasury Regulation Section 1.7704-1(h)(3)).
ARTICLE VIII
MISCELLANEOUS
Section 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement shall in any event be effective unless the same shall be in
writing and signed by the Program Agent, the Managing Agents, the Conduit
Purchasers and the Committed Purchasers. Any waiver or consent shall be
effective only if signed by the party waiving any right, in the specific
instance and for the specific purpose for which given, and any amendment
affecting the rights, duties immunities or indemnities of the Trustee shall not
be effective unless signed by the Trustee.
Section 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telex and facsimile communication) and shall be personally delivered
or sent by certified mail, postage prepaid, or overnight courier or facsimile,
to the intended party at the address or facsimile number of such party set forth
under its name on the signature pages hereof or at such other address or
facsimile number as shall be designated by such party in a written notice to the
other parties hereto. All such notices and communications shall be effective (a)
if personally delivered, when received, (b) if sent by certified mail, four
Business Days after having been deposited in the mail, postage prepaid, (c) if
sent by overnight courier, one Business Day after having been given to such
courier, unless sooner received by the addressee and (d) if transmitted by
facsimile, when sent, upon receipt confirmed by telephone or electronic means,
except that notices and communications pursuant to Articles II and III shall not
be effective until received. Notices and communications sent hereunder on a day
that is not a Business Day shall be deemed to have been sent on the next
following Business Day.
Section 8.03. NO WAIVER; REMEDIES; SET-OFF. No failure on the part of
any Beneficiary to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law. Without limiting the foregoing, the
Program Agent and each Purchaser is hereby authorized by the Seller at any time
and from time to time after the occurrence and during the continuance of an
Early Amortization Event, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Program
Agent and each Purchaser to or for the credit or the account of the Seller
against any and all of the Obligations of the Seller now or hereafter existing,
to the Program Agent, any Purchaser, any Affected Person, or their respective
successors and assigns, irrespective of whether such Person shall have made any
demand under any Transaction Document and although such Obligations may be
unmatured; provided, however, that no such Person shall exercise any such right
of set-off without the prior written consent of the Program Agent. Each
30
34
set-off by any Purchaser under this Section 8.03 against the Class A Invested
Amount shall reduce the Class A Invested Amount accordingly.
Section 8.04. BINDING EFFECT; SURVIVAL.
(a) This Agreement shall be binding upon the parties hereto and inure
to the benefit of the parties hereto and all Affected Persons and their
respective successors and assigns; provided, however, that nothing in the
foregoing shall be deemed to authorize any assignment not permitted by
Section 7.01. This Agreement shall create and constitute the continuing
obligation of the parties hereto in accordance with its terms, and shall
remain in full force and effect until one year and one day after the
earlier of the date on which all Obligations are indefeasibly paid in full
or the date on which the Trust shall terminate in accordance with the
Pooling and Servicing Agreement. The provisions of Article III shall be
continuing and shall survive any termination of this Agreement.
(b) A Purchaser shall become a party hereto (i) by executing and
delivering to the Program Agent a counterpart of the signature page to this
Agreement or (ii) in accordance with the procedures set forth in Article
VII hereof. Thereupon, upon acceptance and recording by the Program Agent
in the Register, such Purchaser shall become a party to this Agreement from
and after the date of execution of such signature page. Purchasers may
become parties hereto at different times and from time to time in
accordance with the foregoing procedure.
Section 8.05. NO PROCEEDINGS. Each of the Seller (on its own behalf and
on behalf of its Affiliates), the Trustee, the Program Agent, each Managing
Agent and each Purchaser hereby agrees that it will not institute against any
Conduit Purchaser, or join any other Person in instituting against any Conduit
Purchaser, any case or proceeding of the type referred to in the definition of
"INSOLVENCY EVENT" so long as any Commercial Paper issued by such Conduit
Purchaser shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any such Commercial Paper shall have been
outstanding. The foregoing shall not limit the right of the Seller, the Trustee,
the Program Agent, any Managing Agent or any Purchaser to file any claim in or
otherwise take any action with respect to any such case or proceeding that was
instituted against any Conduit Purchaser by any Person other than the Seller,
the Trustee, the Program Agent, any Managing Agent or any Purchaser.
Section 8.06. CAPTIONS AND CROSS REFERENCES. The various captions
(including the table of contents) in this Agreement are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Agreement.
Section 8.07. INTEGRATION. This Agreement, together with the other
Transaction Documents, contains a final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter hereof and,
together with all the other Transaction Documents, shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
superseding all prior oral or written understandings.
Section 8.08. REPLACEMENT OF PURCHASERS. So long as any securitization
company administered by any Managing Agent or any of its Affiliates is a
Purchaser, such Managing
31
35
Agent shall have the right, in its sole discretion, to terminate the rights and
obligations of any or all Committed Purchasers in its Purchaser Group to make
the Purchase or fund Increases in the event that the applicable rating of such
Committed Purchaser shall be downgraded below that described in the definition
of "Eligible Assignee". Such termination shall be effective upon written notice
to such effect delivered by such Managing Agent to such Committed Purchaser and
the Program Agent, whereupon the Term of such Committed Purchaser's Commitment
shall terminate. Upon such termination, such Committed Purchaser shall cease to
have any rights or obligations with respect to future Increases under this
Agreement but shall continue to have the rights and obligations of a Committed
Purchaser with respect to any Purchase or Increases funded by it under this
Agreement prior to such termination. The applicable Managing Agent shall use
reasonable efforts to replace any Purchaser removed pursuant to this Section
8.08.
Section 8.09. CONFIDENTIALITY. Each of the Trustee, the Program Agent,
each Managing Agent and each Purchaser agrees, and shall cause their agents or
representatives, to hold in confidence all Confidential Information; provided
that nothing herein shall prevent the Trustee or any Purchaser from delivering
copies of any financial statements and other documents constituting Confidential
Information, or disclosing any other Confidential Information, to (i) the
Trustee or such Purchaser's directors, officers, employees, agents and
professional consultants, (ii) any other Purchaser or any rating agency then
rating the Commercial Paper of any Certificateholder, (iii) any Person to which
such Purchaser offers to sell or assign or sells or assigns a Class A
Certificate or any part thereof or any rights associated therewith or
participation therein, provided that such Person shall have agreed to hold in
confidence all Confidential Information as set forth herein, (iv) any federal or
state regulatory authority having jurisdiction over such Purchaser, (v) the
National Association of Insurance Commissioners or any similar organization,
(vi) any state, federal or foreign authority or examiner regulating banks or
banking, (vii) to any affiliate, independent or internal auditor, agent,
employee or attorney having a need to know the same, provided that such Person
is advised of the confidential nature of the information being disclosed and
each such recipient agrees to be bound by the terms of this Section, (viii) any
other Person to which such delivery or disclosure may be necessary or
appropriate (a) in compliance with any law, rule, regulation or order applicable
to the Trustee or such Purchaser, (b) in response to any subpoena or other legal
process or (c) in connection with any litigation to which the Trustee or such
Purchaser is a party or (ix) any liquidity provider, enhancement provider and
prospective liquidity provider and enhancement provider, in each case with
respect to a Conduit Purchaser, including in its capacity as a Committed
Purchaser.
Section 8.10. REIMBURSEMENT OF PROGRAM AGENT. Each Managing Agent will
on demand reimburse the Program Agent in accordance with its respective
Purchaser Group's Pro Rata Share, any and all reasonable costs and expenses
(including reasonable fees and disbursements of counsel) which may be incurred
in connection with collecting amounts owed with respect to any Class A
Certificate in which such Purchaser purchases Series 2000-1 Certificate
Interests for which the Program Agent is not promptly reimbursed by the Seller
or otherwise. Should the Program Agent later be reimbursed by the Seller for any
such amount, the Program Agent shall immediately pay to each Purchaser its
Purchaser Committed Percentage of such amount.
Section 8.11. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that, except as otherwise expressly provided in any
Transaction Document, (a)
32
36
this Agreement is executed and delivered by Bankers Trust Company, not
individually or personally but solely as Trustee of the Trust, in the exercise
of the powers and authority conferred and vested in it, (b) the representations,
undertakings and agreements herein made on the part of the Trust are made and
intended not as personal representations, undertakings and agreements by Bankers
Trust Company, but are made and intended for the purpose of binding only the
Trust, (c) nothing herein contained shall be construed as creating any liability
on Bankers Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Agreement and by any
person claiming by, through or under such parties, and (d) under no
circumstances shall Bankers Trust Company be personally liable for the payment
of any indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement, except to the extent provided in
this Agreement.
Section 8.12. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE RIGHTS AND
DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 8.13. SUBMISSION TO JURISDICTION.
(i) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, 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 Agreement or any of
the other Transaction Documents to which it is a party, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the extent permitted by law, in such federal court. 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. Nothing in
this Agreement shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Agreement or any of the
other Transaction Documents in the courts of any jurisdiction.
(ii) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or
any of the other Transaction Documents to which it is a party in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
Section 8.14. CONSENT TO SERVICE OF PROCESS. Each party to this
Agreement irrevocably consents to service of process by personal delivery,
certified mail, postage prepaid or
33
37
overnight courier. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
Section 8.15. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature page of this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 8.16. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT,
OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN),
ACTIONS OF ANY OF THE PARTIES HERETO AND THE PURCHASERS OR ANY OTHER
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
Section 8.17. EXECUTION OF THE INTERCREDITOR AGREEMENT. The Purchasers
and the Managing Agents hereby authorize and direct the Program Agent to execute
the Intercreditor Agreement.
34
38
IN WITNESS WHEREOF, the parties hereto have caused this Series 2000-1
Certificate Purchase Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
THE EL-BEE RECEIVABLES
CORPORATION,
as Seller
By: /s/ Scott J. Davido
------------------------------------
Name: Scott J. Davido
Title: President
CORPORATE RECEIVABLES CORPORATION,
as Purchaser
By: CITICORP NORTH AMERICA, INC.,
as Attorney-in-Fact
By: /s/ Susan Olsen
----------------------------
Name: Susan Olsen
Title: Vice President
EAGLEFUNDING CAPITAL CORPORATION,
as Purchaser
By: FLEETBOSTON ROBERTSON
STEPHENS INC.,
as Attorney-in-Fact
By: /s/ Dawn Druyor Gillette
----------------------------
Name: Dawn Druyor Gillette
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Program Agent and as a Managing Agent
By: /s/ Susan Olsen
------------------------------------
Name: Susan Olsen
Title: Vice President
FLEETBOSTON ROBERTSON
STEPHENS INC.,
as Managing Agent
By: /s/ Dawn Druyor Gillette
------------------------------------
Name: Dawn Druyor Gillette
Title: Vice President
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: /s/ Louis Bodi
------------------------------------
Name: Louis Bodi
Title: Vice President
CITIBANK, N.A.,
as a Committed Purchaser
By: /s/ Susan Olsen
------------------------------------
Name: Susan Olsen
Title: Vice President
EAGLEFUNDING CAPITAL CORPORATION,
as Committed Purchaser
By: FLEETBOSTON ROBERTSON
STEPHENS INC.,
as Attorney-in-Fact
By: /s/ Dawn Druyor Gillette
---------------------------
Name: Dawn Druyor Gillette
Title: Vice President
35
39
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Series 2000-1 Certificate Purchase Agreement
dated as of May 19, 2000 (as amended, supplemented or otherwise modified from
time to time, the "CERTIFICATE PURCHASE AGREEMENT") THE EL-BEE RECEIVABLES
CORPORATION, a Delaware corporation, as Seller (the "SELLER"), CORPORATE
RECEIVABLES CORPORATION, a Delaware corporation ("CRC"), EAGLEFUNDING CAPITAL
CORPORATION, a Delaware corporation ("EAGLEFUNDING") and the other commercial
paper conduits from time to time party hereto, each a Conduit Purchaser,
CITIBANK, N.A., a national banking association ("CITIBANK"), EAGLEFUNDING
CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and the other
financial institutions from time to time party hereto, as Committed Purchasers,
CITICORP NORTH AMERICA, INC., a Delaware corporation ("CNAI"), FLEETBOSTON
ROBERTSON STEPHENS INC, a Massachusetts corporation ("FRSI") and the other
financial institutions from time to time party hereto, as Managing Agents,
CITICORP NORTH AMERICA, INC., a Delaware corporation, as Program Agent (the
"PROGRAM AGENT") and BANKERS TRUST COMPANY, a New York banking corporation, not
in its individual capacity but solely as Trustee (the "TRUSTEE").. Terms defined
in the Certificate Purchase Agreement unless otherwise defined herein are used
herein as defined therein.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. As of the Effective Date (defined below), the Assignor hereby sells
and assigns, without recourse, to the Assignee, and the Assignee hereby
purchases and assumes, without recourse to or representation of any kind (except
as set forth below) from Assignor, an interest in and to the Assignor's rights
and obligations under the Certificate Purchase Agreement and under any other
Transaction Document equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Certificate Purchase
Agreement and any other Transaction Document, including the Assignor's
Commitment, Committed Percentage, Series 2000-1 Class A Certificate Interests
and Class A Invested Amount (such rights and obligations assigned hereby being
the "ASSIGNED INTERESTS"). After giving effect to such sale and assignment, the
Assignee's Commitment and Committed Percentage will be as set forth on Schedule
1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder free and clear
of any Lien created by Assignor; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Transaction Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security or ownership interest
created or purported to be created under or in connection with, the Transaction
Documents or any other instrument or
A-1
40
document furnished pursuant thereto or the condition or value of any Trust Asset
or any interest therein; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the condition (financial or otherwise)
of any of the Seller, any other Originator, the Servicer, the Parent or the
Trustee or the performance or observance by any Person of any of its obligations
under any Transaction Document or any other instrument or document furnished
pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Certificate Purchase Agreement, the Pooling and Servicing Agreement, together
with copies of any financial statements delivered pursuant to Sections 2.05(f)
and 3.03(b)(vii) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Program Agent, the Assignor or any other Purchaser and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under any of the Transaction Documents; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Program Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Transaction Documents as are delegated to the Program Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Transaction Documents are required to
be performed by it as a Purchaser; (vi) confirms that the assignment hereunder
complies with any applicable legal requirements including the Securities Act;
(vii) confirms that such Assignee is a United States Person (as defined in
Section 7701(a)(30) of the Internal Revenue Code) or that such Assignee shall
have provided the Seller with two Internal Revenue Service forms 1001 or 4224
(or a successor form) certifying that the income from the Class A Certificates
is effectively connected with the conduct of such Person's trade or business in
the United States or that such income is exempt from withholding under an
applicable tax treaty; (viii) confirms that such Assignee is not a partnership,
grantor trust or S corporation (as such terms are defined in the Internal
Revenue Code); (ix) confirms that the assignment hereunder will not result in
the Trust having more than 100 beneficial owners of Certificates (taking into
account the attribution rules of Treasury Regulation Section 1.7704-2(h)); and
(x) attaches any other U.S. Internal Revenue Service forms required under
Section 3.03 of the Certificate Purchase Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Program Agent for acceptance and recording by the Program
Agent. The effective date for this Assignment and Acceptance (the "EFFECTIVE
DATE") shall be the date of acceptance hereof by the Program Agent, unless a
later effective date is specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Program Agent, as of the
Effective Date, (i) the Assignee shall be a party to and bound by the provisions
of the Certificate Purchase Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Liquidity
Provider thereunder and under any other Transaction Document and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Certificate
Purchase Agreement and under any other Transaction Document.
A-2
41
6. Upon such acceptance and recording by the Program Agent, from and
after the Effective Date, the Program Agent and Trustee shall make all payments
under the Certificate Purchase Agreement and the Assigned Interests (including,
without limitation, all payments of the Class A Invested Amount, interest and
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Certificate Purchase Agreement
and the Assigned Interests for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
A-3
42
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Commitment assigned: $________
Committed Percentage assigned: ________%
Assignor's Commitment
after assignment: $________
Assignor's Committed
Percentage after assignment: ________%
Effective Date (if later than date of acceptance by Program Agent):
- ---------- --, ----
[NAME OF ASSIGNOR], as Assignor
By:___________________________________
Name:
Title:
Dated: __________ __, ____
[NAME OF ASSIGNEE], as Assignee
By:___________________________________
Name:
Title:
Dated: __________ __, ____
Address for Notices:
A-4
43
Accepted this ____ day
of __________, ____
CITICORP NORTH AMERICA, INC.,
as Program Agent
By_____________________________
Name:
Title:
A-5
44
EXHIBIT B
FORM OF SERIES 2000-1 NOTICE OF PURCHASE
[Date]
Citicorp North America, Inc.
399 Park Avenue
New York, NY 10043
The El-Bee Receivables Corporation
3155 El-Bee Road
Dayton, Ohio 45349
Attention: President
Reference is made to the Series 2000-1 Certificate Purchase Agreement
dated May [ ], 2000 (the "SERIES 2000-1 CERTIFICATE PURCHASE AGREEMENT") THE
EL-BEE RECEIVABLES CORPORATION, a Delaware corporation, as Seller (the
"SELLER"), CORPORATE RECEIVABLES CORPORATION, a Delaware corporation ("CRC"),
EAGLEFUNDING CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and
the other commercial paper conduits from time to time party hereto, each a
Conduit Purchaser, CITIBANK, N.A., a national banking association ("CITIBANK"),
EAGLEFUNDING CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and
the other financial institutions from time to time party hereto, as Committed
Purchasers, CITICORP NORTH AMERICA, INC., a Delaware corporation ("CNAI"),
FLEETBOSTON ROBERTSON STEPHENS INC., a Massachusetts corporation ("FRSI") and
the other financial institutions from time to time party hereto, as Managing
Agents, CITICORP NORTH AMERICA, INC., a Delaware corporation, as Program Agent
(the "PROGRAM AGENT") and BANKERS TRUST COMPANY, a New York banking corporation,
not in its individual capacity but solely as Trustee (the "TRUSTEE").
Capitalized terms not defined herein have the meaning specified in the Series
2000-1 Certificate Purchase Agreement.
Notice is hereby given that the undersigned requests the making of the Purchase
on __________ __, ____ in the amount of $_______.
B-1
45
THE EL-BEE RECEIVABLES
CORPORATION
By:___________________________________
Name:
Title:
B-2
46
EXHIBIT C
FORM OF NOTICE OF INCREASE
[Date]
Citicorp North America, Inc.
399 Park Avenue
New York, NY 10043
The El-Bee Receivables Corporation
3155 El-Bee Road
Dayton, Ohio 45349
Attention: President
Reference is made to the Series 2000-1 Certificate Purchase Agreement
dated May 19, 2000 (the "SERIES 2000-1 CERTIFICATE PURCHASE AGREEMENT") among
THE EL-BEE RECEIVABLES CORPORATION, a Delaware corporation, as Seller (the
"SELLER"), CORPORATE RECEIVABLES CORPORATION, a Delaware corporation ("CRC"),
EAGLEFUNDING CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and
the other commercial paper conduits from time to time party hereto, each a
Conduit Purchaser, CITIBANK, N.A., a national banking association ("CITIBANK"),
EAGLEFUNDING CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and
the other financial institutions from time to time party hereto, as Committed
Purchasers, CITICORP NORTH AMERICA, INC., a Delaware corporation ("CNAI"),
FLEETBOSTON ROBERTSON STEPHENS INC., a Massachusetts corporation ("FRSI") and
the other financial institutions from time to time party hereto, as Managing
Agents, CITICORP NORTH AMERICA, INC., a Delaware corporation, as Program Agent
(the "PROGRAM AGENT") and BANKERS TRUST COMPANY, a New York banking corporation,
not in its individual capacity but solely as Trustee (the "TRUSTEE").
Capitalized terms not defined herein have the meaning specified in the Series
2000-1 Certificate Purchase Agreement.
Notice is hereby given that the undersigned requests the funding of an Increase
in the amount of $_______ on __________ __, ____.
C-1
47
THE EL-BEE RECEIVABLES
CORPORATION
By:___________________________________
Name:
Title:
C-2
48
EXHIBIT D
FORM OF JOINDER AGREEMENT
Reference is made to the Certificate Purchase Agreement dated as of May
19, 2000 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "AGREEMENT"), among THE EL-BEE RECEIVABLES
CORPORATION, a Delaware corporation, as Seller (the "SELLER"), CORPORATE
RECEIVABLES CORPORATION, a Delaware corporation ("CRC"), EAGLEFUNDING CAPITAL
CORPORATION, a Delaware corporation ("EAGLEFUNDING") and the other commercial
paper conduits from time to time party hereto, each a Conduit Purchaser,
CITIBANK, N.A., a national banking association ("CITIBANK"), EAGLEFUNDING
CAPITAL CORPORATION, a Delaware corporation ("EAGLEFUNDING") and the other
financial institutions from time to time party hereto, as Committed Purchasers,
CITICORP NORTH AMERICA, INC., a Delaware corporation ("CNAI"), FLEETBOSTON
ROBERTSON STEPHENS INC., a Massachusetts corporation ("FRSI") and the other
financial institutions from time to time party hereto, as Managing Agents,
CITICORP NORTH AMERICA, INC., a Delaware corporation, as Program Agent (the
"PROGRAM AGENT") and BANKERS TRUST COMPANY, a New York banking corporation, not
in its individual capacity but solely as Trustee (the "TRUSTEE"). To the extent
not defined herein, capitalized terms used herein have the meanings assigned to
such terms in the Agreement.
__________________ (the "NEW MANAGING AGENT"), __________________ (the
"NEW CONDUIT PURCHASER(S)"), __________________ (the "NEW COMMITTED
PURCHASER(S)"; and together with the New Managing Agent and New Conduit
Purchaser, the "NEW PURCHASER GROUP"), Seller, Servicer and the Program Agent
agree as follows:
1. Pursuant to SECTION 2.02 of the Agreement, Seller has requested, in
connection with an increase to the Series 2000-1 Invested Amount, that the New
Purchaser Group agree to become a "Purchaser Group" under the Agreement.
2. The effective date (the "EFFECTIVE DATE") of this Joinder Agreement
shall be the later of (i) the date on which a fully executed copy of this
Joinder Agreement is delivered to the Program Agent and (ii) the date of this
Joinder Agreement.
3. By executing and delivering this Joinder Agreement, each of the New
Managing Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s)
confirms to and agrees with each other party to the Agreement that (i) it has
received a copy of the Agreement, the Pooling and Servicing Agreement and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Joinder Agreement; (ii) it will,
independently and without reliance upon the Program Agent or any of its
Affiliates, the other Managing Agents or any of their Affiliates, or the other
Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement or any Transaction Documents; (iii) it
appoints and authorizes the Program Agent to take such action as agent on its
C-1
49
behalf and to exercise such powers under the Agreement, the Transaction
Documents and any other instrument or document pursuant thereto as are delegated
to the Program Agent by the terms thereof, together with such powers as are
reasonably incidental thereto and to enforce its respective rights and interests
in and under the Agreement, the Transaction Documents and the Trust Assets; (iv)
it will perform in accordance with their terms all of the obligations which by
the terms of the Agreement and the Transaction Documents are required to be
performed by it as a Managing Agent, a Conduit Purchaser, a Committed Purchaser,
respectively; (v) its address for notices shall be the office set forth beneath
its name on the signature pages of this Joinder Agreement; and (vi) it is duly
authorized to enter into this Joinder Agreement.
4. On the Effective Date of this Joinder Agreement, each of the New
Managing Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s)
shall join in and be a party to the Agreement and, to the extent provided in
this Joinder Agreement, shall have the rights and obligations of a Managing
Agent, a Conduit Purchaser and a Committed Purchaser, respectively, under the
Agreement .
5. This Joinder Agreement may be executed by one or more of the parties
on any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
6. This Joinder Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Joinder
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written, such execution being made on Schedule I
hereto.
50
Schedule I
to
Joinder Agreement
Dated ______ __, 20__
Section 1.
- ----------
The "CP Rate" with respect to any Commercial Paper issued by the New Conduit
Purchaser(s) to fund its Pro Rata Share of the Principal Amount, is
[_____________________].
Section 2.
- ---------
The "Permitted Conduit Assignees for the New Purchaser Group are
[____________________]
Section 3.
- ----------
The "Purchaser Group Limit" for the New Purchaser Group is $[______________]
Section 4.
- ---------
The "Yield" for the New Purchaser Group is [________________________].
NEW CONDUIT PURCHASER: [NEW CONDUIT PURCHASER]
By:_______________________
Name:
Title:
Address for notices:
[Address]
NEW COMMITTED PURCHASER: [NEW COMMITTED PURCHASER]
By:_______________________
Name:
Title:
Address for notices:
[Address]
51
NEW MANAGING AGENT: [NEW MANAGING AGENT]
By:_______________________
Name:
Title:
Address for notices:
[Address]
Consented to this ___ day of ___________, ____ by:
THE EL-BEE RECEIVABLES CORPORATION
By:_______________________
Name:
Title:
CITICORP NORTH AMERICA, INC.
By:_______________________
Name:
Title: