1
Exhibit 10(a)(iv)
EXECUTION COPY
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XXXXX-XXXXXXX MASTER TRUST
SERIES 1997-1 LOAN AGREEMENT
Dated as of December 30, 1997
among
THE EL-BEE RECEIVABLES CORPORATION,
as Transferor,
THE EL-BEE CHARGIT CORP.,
as Servicer,
BANKERS TRUST COMPANY,
as Trustee,
THE COLLATERAL INVESTORS PARTIES HERETO
and
CITICORP NORTH AMERICA, INC.,
as Program Agent
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SERIES 1997-1 LOAN AGREEMENT
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.................................................................. 1
Section 1.02. Other Definition Provisions.................................................... 4
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT
Section 2.01. Commitment..................................................................... 5
Section 2.02. Allocations and Distributions.................................................. 5
Section 2.03. Fees........................................................................... 6
Section 2.04. Increased Costs................................................................ 6
Section 2.05. Taxes.......................................................................... 7
Section 2.06. Cost and Expenses.............................................................. 10
Section 2.07. Sharing of Payments, Etc....................................................... 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties................................................. 11
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to the Purchase........................................... 13
Section 4.02. Further Conditions Precedent to the Purchase................................... 17
ARTICLE V
COVENANTS
Section 5.01. Covenants...................................................................... 19
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ARTICLE VI
THE PROGRAM AGENT
Section 6.01. Authorization and Action of the Program Agent.................................. 19
Section 6.02. The Program Agent's Reliance, Etc.............................................. 19
Section 6.03. The Program Agent and Affiliates............................................... 20
Section 6.04. Amendments, Waivers and Consents............................................... 20
Section 6.05. Collateral Investor Credit Decision............................................ 22
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendments and Waivers......................................................... 22
Section 7.02. Assignment..................................................................... 22
Section 7.03. Rights of Assignee............................................................. 23
Section 7.04. Notice of Assignment........................................................... 23
Section 7.05. Register....................................................................... 23
Section 7.06. Participations................................................................. 23
Section 7.07. Restrictions on Assignments and Participations................................. 24
Section 7.08. Notices, Etc................................................................... 24
Section 7.09. No Waiver; Remedies; Set-Off................................................... 25
Section 7.10. Binding Effect; Survival....................................................... 25
Section 7.11. Captions....................................................................... 25
Section 7.12. Integration.................................................................... 25
Section 7.13. Confidentiality................................................................ 25
Section 7.14. Reimbursement of Program Agent................................................. 26
Section 7.15. Limitation of Liability........................................................ 26
Section 7.16. No Proceedings................................................................. 27
Section 7.17. Governing Law.................................................................. 27
Section 7.18. Submission to Jurisdiction..................................................... 27
Section 7.19. Consent to Service of Process.................................................. 28
Section 7.20. Execution in Counterparts...................................................... 28
Section 7.21. Waiver of Jury Trial........................................................... 29
EXHIBITS
Exhibit A Form of Transfer Supplement
SERIES 1997-1 LOAN AGREEMENT
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SERIES 1997-1 LOAN AGREEMENT, dated as of December 30, 1997,
among BANKERS TRUST COMPANY, as Trustee (as defined below) for the Xxxxx-
Xxxxxxx Master Trust (as defined below), THE EL-BEE RECEIVABLES CORPORATION, a
Delaware corporation, as Transferor (as defined below), THE EL-BEE CHARGIT CORP.
("CHARGIT"), as Servicer (as defined below), each of the financial institutions
listed as a Collateral Investor on the signature pages hereof or in a Transfer
Supplement entered into in accordance with Section 7.02 (individually, a
"COLLATERAL INVESTOR" and, collectively, the "COLLATERAL INVESTORS") and
CITICORP NORTH AMERICA, INC., as Program Agent for the Collateral Investors (in
such capacity, together with its successors and assigns in such capacity, the
"PROGRAM AGENT").
1. The Transferor, the Servicer and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of December 30, 1997 (as
amended, supplemented or otherwise modified from time to time, the "POOLING AND
SERVICING AGREEMENT"), and the Series 1997-1 Supplement, dated as of December
30, 1997, to the Pooling and Servicing Agreement (the "SERIES 1997-1
SUPPLEMENT"). Terms defined in the Pooling and Servicing Agreement as
supplemented by the Series 1997-1 Supplement, unless otherwise defined herein,
are used herein as therein defined.
2. The Xxxxx-Xxxxxxx Master Trust, formed under the Pooling
and Servicing Agreement, may issue the Collateral Investor Certificates at the
direction of the Transferor.
3. Subject to the terms and conditions of this Agreement and
of the Series 1997-1 Supplement, the Transferor may sell the Collateral Investor
Certificates to the Collateral Investors.
4. The Collateral Investor Certificates will be held by the
Program Agent for the Collateral Investors.
NOW, THEREFORE, in consideration of 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. DEFINED TERMS. Whenever used in this Agreement,
the following terms shall have the following meanings:
"AFFECTED PERSON" means any Collateral Investor (and, for
purposes of Section 2.04, the Trust and the Trustee).
SERIES 1997-1 LOAN AGREEMENT
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"AGREEMENT" means this Series 1997-1 Loan Agreement, as
amended, supplemented or otherwise modified from time to time.
"ASSIGNMENT" shall have the meaning specified in Section
7.02(a).
"BANKRUPTCY COURT" means the United States Bankruptcy Court
for the Southern District of Ohio, or such other court as may hereafter be
granted primary jurisdiction over the Reorganization Case.
"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).
"CHARGIT" shall have the meaning specified in the first
paragraph hereof.
"CLASS" means any class of any Series of Investor
Certificates.
"COLLATERAL INVESTOR" shall have the meaning specified in the
first paragraph hereof.
"COMMITMENT" means, as of any date and with respect to each
Collateral Investor, the amount set forth opposite such Collateral Investor's
name on the signature pages hereof or, if such Collateral Investor has entered
into one or more Transfer Supplements, set forth for such Collateral Investor in
the Register maintained by the Program Agent pursuant to Section 7.05 hereof as
such Collateral Investor's Commitment, as the same may be reduced pursuant to
any Assignment.
"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 Transferor 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 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.
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"CURRENT PLAN" means the Parent's Second Amended Plan of
Reorganization dated November 7, 1997 and all exhibits thereto.
"ELIGIBLE ASSIGNEE" means a depository institution organized
under the laws of the United States of America or any state thereof, or the
District of Columbia (or any domestic branch of a foreign bank authorized under
any such laws), (a) whose senior long-term unsecured debt obligations are rated
at least (i) A- or better by Standard & Poor's, and (ii) A3 or better by
Xxxxx'x, (b) which is subject to regulation regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b), and (c) which has a combined
capital and surplus of at least $500,000,000.
"OBLIGATIONS" means all obligations of any Originator, the
Transferor, the Servicer or the Parent to any one or more of the Trustee, the
Trust, the Collateral Investors, 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.
"OTHER TAXES" shall have the meaning specified in Section
2.05(b).
"PARENT" means the Xxxxx-Xxxxxxx Stores Corp., an Ohio
corporation.
"PLAN OF REORGANIZATION" means the Parent's plan of
reorganization (including all exhibits thereto) ultimately confirmed by the
Bankruptcy Court in the Parent's Reorganization Case.
"POOLING AND SERVICING AGREEMENT" shall have the meaning
specified in the recitals to this Agreement.
"PROGRAM AGENT" shall have the meaning specified in the first
paragraph hereof.
"PROGRAM AGENT'S ACCOUNT" shall have the meaning specified in
the Series 1997-1 Certificate Purchase Agreement.
"PRO RATA SHARE" means, with respect to any Collateral
Investor at any time, the percentage equivalent of a fraction the numerator of
which shall be an amount equal to such Collateral Investor's Commitment at such
time (after giving effect to all Assignments effective on or prior to such time
of determination) and the denominator of which shall be an amount equal to the
Commitments of all Collateral Investors at such time.
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"PURCHASE" means the purchase under Section 2.01 of the
Collateral Investor Certificates by the Collateral Investors.
"PURCHASE DATE" has the meaning specified in Section 2.01(a).
"PURCHASE PRICE" has the meaning specified in Section 2.01(a).
"REGISTER" has the meaning specified in Section 7.05.
"REORGANIZATION CASE" means the Parent's case pursuant to
chapter 11 of the Bankruptcy Code administered in the Bankruptcy Court under
Case No. 95-33643.
"REQUIRED COLLATERAL INVESTORS" means, at any time, such
Collateral Investors whose Pro Rata Shares in the aggregate represent at least
66-2/3% of the aggregate of the Commitments such time.
"SELLER'S ACCOUNT" shall have the meaning specified in the
Series 1997-1 Certificate Purchase Agreement.
"SERIES 1997-1 CERTIFICATE PURCHASE AGREEMENT" means the
Series 1997-1 Certificate Purchase Agreement, dated as of December 30, 1997,
among the Transferor, as Seller, Corporate Receivables Corporation, as
Purchaser, the Liquidity Providers party thereto, Citicorp North America, Inc.,
as Program Agent, and the Trustee.
"SERIES 1997-1 SUPPLEMENT" shall have the meaning specified in
the recitals of this Agreement.
"TAXES" shall have the meaning specified in Section 2.05(a).
"TRANSFER SUPPLEMENT" means a Transfer Supplement,
substantially in the form of Exhibit A hereto.
Section 1.02. OTHER DEFINITION 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.
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(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".
(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
AMOUNT AND TERMS OF COMMITMENT
Section 2.01. COMMITMENT. (a) Subject to the terms and
conditions hereof, each Collateral Investor severally agrees to purchase the
Collateral Investor Certificates, or a portion thereof, in a principal amount
equal to such Collateral Investor's Commitment on the date all the conditions
specified in Article IV are met or waived (the "PURCHASE DATE") for a purchase
price (the "PURCHASE PRICE") equal to such amount.
(b) On the Closing Date and on any date on which either of the
Collateral Invested Amount or the Commitment of any Collateral Investor is
reduced, a duly authorized officer or employee of the Program Agent shall make
appropriate notations in the Register of the Purchase Price or the amount of
such reduction, as applicable.
(c) On the Closing Date, the Transferor will deliver to the
Program Agent, on behalf of the Collateral Investors, the Collateral Investor
Certificates dated the Closing Date, duly executed by the Transferor, registered
in the name of the Collateral Investors and duly authenticated in accordance
with the provisions of the Pooling and Servicing Agreement, against delivery by
the Program Agent, on behalf of the Collateral Investors, to the Transferor, of
the Purchase Price.
(d) On the Closing Date, each Collateral Investor shall, upon
satisfaction or waiver of the applicable conditions set forth in Article IV,
deposit in the Program Agent's Account such Collateral Investor's Pro Rata Share
of the Purchase Price, in each case in same
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day funds, and after receipt by the Program Agent of such funds, the Program
Agent will deposit the same into the Seller's Account.
Section 2.02. ALLOCATIONS AND DISTRIBUTIONS. All allocations
of Collections of Principal Receivables, Collections of Finance Charge
Receivables, Loss Amounts, the Series 1997-1 Monthly Trustee's Fee, the Series
1997-1 Program Fees, the Investor Monthly Servicing Fee, Breakage Costs, all
other amounts allocable with respect to the Collateral Investor Certificates,
and all amounts distributable in connection with each of the foregoing,
shall be allocated and distributed in accordance with the Pooling and Servicing
Agreement and the Series 1997-1 Supplement.
Section 2.03. FEES. The Transferor shall pay to the Program
Agent such fees for its own account and for the account of the Collateral
Investors in such amounts and at such times as are set forth in the Fee Letter.
Section 2.04. 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 or
otherwise to maintain its Commitment or its investment in the Collateral
Investor Certificates in respect of which the Collateral Investor Certificate
Rate is the Assignee Rate determined by reference to the Adjusted Eurodollar
Rate (excluding for purposes of this Section 2.04 any such increased costs
resulting from (A) Taxes or Other Taxes (as to which Section 2.05 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 Transferor 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 Program 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 Transferor and the Program Agent
by such Affected Person shall be conclusive and binding for all purposes, absent
manifest error.
(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
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case occurring after the Purchase Date, affects or would affect the amount 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 or otherwise to maintain its Commitment or its investment
in the Collateral Investor Certificates, then, upon demand to the Transferor by
such Affected Person (with a copy of such demand to the Program Agent) the
Transferor shall promptly pay to the Program 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 otherwise
maintain its Commitment or its investment in the Collateral Investor
Certificates. 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
Transferor 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 Transferor
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
2.04; 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 2.05. 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 Transferor's
indemnity obligations under Section 7.03 of the Pooling and Servicing Agreement,
if the Transferor, 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 Transferor shall increase
the sum payable by it, the Parent, the Trust or the Trustee, as the case may be,
as may be
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necessary so that after making all required deductions or payments (including
deductions or payments applicable to additional sums required to be paid or
deposited under this Section 2.05) 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 Transferor shall make such deductions or payments, or cause such
deductions or payments to be made, and (iii) the Transferor 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 Transferor 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 Transferor 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 2.05, 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 Transferor. A certificate as to the amount of such
indemnification submitted to the Transferor 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
Transferor or the Trustee (as the case may be) shall furnish to the Program
Agent, at its address referred to in Section 7.08, 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 Transferor through an account or branch outside the
United States or by or on behalf of the Transferor by a payor that is not a
United States person, if the Transferor determines that no Taxes are payable in
respect thereof, the Transferor 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 2.05(d) and 2.05(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 2.05, obligations of the Trustee, if any, under this Section 2.05
shall be payable only out of the Trust Assets.
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(f) Each Collateral Investor that is organized under the laws
of a jurisdiction outside the United States shall, on or prior to the date of
its execution and delivery of this Agreement or on the date of the Transfer
Supplement pursuant to which it became a Collateral Investor, as applicable, and
from time to time thereafter as requested in writing by the Transferor or the
Program Agent, provide (but only so long thereafter as such Collateral Investor
remains lawfully able to do so) each of the Transferor and the Program Agent
with two original Internal Revenue Service forms 1001 or 4224, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Collateral Investor is exempt from United States
withholding tax or entitled to a reduced rate of United States withholding tax
on payments pursuant to this Agreement. If the form provided by a Collateral
Investor at the time such Collateral Investor first becomes a party to this
Agreement indicates a United States interest withholding tax in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Collateral Investor provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate shall only be
considered excluded from Taxes for periods governed by such form. 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 Internal Revenue Service forms 1001
or 4224, that the Collateral Investor reasonably considers to be confidential,
the Collateral Investor shall give notice thereof to the Transferor 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 Collateral Investor
has failed to provide the Transferor 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 Collateral Investor or if such form otherwise is not
required under subsection (f) above), the Transferor shall not be required to
make any additional payments under subsection (a) above nor shall such
Collateral Investor be entitled to indemnification under subsection (a) or (c)
with respect to Taxes imposed by the United States; PROVIDED, HOWEVER, that
should a Collateral Investor become subject to Taxes because of its failure to
deliver a form required hereunder, the Transferor shall take such steps as such
Collateral Investor shall reasonably request to assist such Collateral Investor
to recover such Taxes.
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(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
Transferor 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 rate equal to the interest rate that would otherwise be applicable to the
principal amount of the relevant Collateral Investor Certificates.
Section 2.06. 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 Transferor agrees to pay on demand
(i) all costs and expenses (including reasonable fees and expenses of counsel)
of the Trustee and the Program Agent 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 and (B) the reasonable fees and expenses of counsel
for the Program Agent with respect thereto (including with respect to advising
the Program 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 Transferor, 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), (ii) all reasonable costs and expenses of the Trustee, the
Program Agent and the Collateral Investors 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
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(including the reasonable fees and expenses of counsel for the Trustee, the
Program Agent and each Collateral Investor with respect thereto, EXCEPT that, in
the case of the Collateral Investors, such fees and expenses will be payable
only for a single counsel selected by the Required Collateral Investors) and
(iii) all costs and expenses of the Trustee and the Program Agent 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 Transferor, 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 behalf of such Person by the Program
Agent or any Collateral Investor, in its sole discretion.
Section 2.07. SHARING OF PAYMENTS, ETC. If any Collateral
Investor 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 Collateral
Investor under the Transaction Documents (other than pursuant to Section 2.04,
2.05 or 2.06 of this Agreement) which is in excess of its PRO RATA share
(according to the proportion of (i) the amount of such Collateral Investor's Pro
Rata Share of the Collateral Invested Amount at such time to (ii) the Collateral
Invested Amount at such time) of payments on account of the Obligations due and
payable to all Collateral Investors under the Transaction Documents at such time
obtained by all Collateral Investors at such time or (b) on account of
Obligations owing (but not due and payable) to such Collateral Investor under
the Transaction Documents at such time in excess of its PRO RATA share
(according to the proportion of (i) the amount of such Collateral Investor's Pro
Rata Share of the Collateral Invested Amount at such time to (ii) the Collateral
Invested Amount at such time) of payments on account of the Obligations owing
(but not due and payable) to all Collateral Investors under the Transaction
Documents at such time obtained by all Collateral Investors at such time, such
Collateral Investor shall forthwith purchase from the other Collateral Investors
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 Collateral Investor
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 Collateral Investor, such purchase
from each other Collateral Investor shall be rescinded and such other Collateral
Investor shall repay to the purchasing Collateral Investor the purchase price to
the extent of such Collateral Investor's ratable share (according to the
proportion of (i) the purchase price paid to such Collateral Investor to (ii)
the aggregate purchase price paid to all Collateral Investors) of such recovery
together with an amount equal to such Collateral Investor's ratable share
(according to the proportion of (i) the amount of such other Collateral
Investor's required repayment to (ii) the total amount so recovered from the
purchasing Collateral Investor) of any interest or other amount paid or payable
by the purchasing Collateral Investor in respect of the total
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amount so recovered. The Transferor agrees that the Collateral Investor so
purchasing a participation from another Collateral Investor pursuant to this
Section 2.07 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 Collateral Investor were the direct creditor
of the Trust in the amount of such participation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. REPRESENTATIONS AND WARRANTIES. Each of the
Transferor and the Servicer hereby represents and warrants to the Collateral
Investors as follows:
(a) DUE ORGANIZATION, QUALIFICATION AND AUTHORIZATION. It (i)
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed and
(iii) has all requisite corporate power and authority (including all
governmental licenses, permits and other approvals) to own or lease and
operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
(b) CORPORATE POWERS AND NO CONFLICTS. The execution, delivery
and performance by it of the Transaction Documents to which it is or is
to be a party, the consummation of the transactions contemplated hereby
and the making of each Transfer, are within its corporate powers, have
been duly authorized by all necessary corporate action, and do not (i)
contravene or violate any Requirement of Law, (ii) conflict with or
result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting it or any of its properties or (iii)
result in or require the creation or imposition of any Lien upon or
with respect to any of its properties. It is not in violation of any
Requirement of Law or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument.
(c) GOVERNMENT AUTHORIZATION AND APPROVAL. No authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is
required for (i) the due execution, delivery or performance by it of
any of the Transaction Documents to which it is or is to be a party,
any Transfer or the consummation of the other transactions contemplated
hereby or thereby, (ii) the grant by it of the liens granted by it
pursuant to the Transaction
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Documents, (iii) the perfection or maintenance of the liens created by
the Transaction Documents (including the first priority nature thereof)
or (iv) the exercise by the Trustee of its rights under the Transaction
Documents or the remedies granted under the Transaction Documents,
except for (A) the financing statements and other documents required to
have been filed on or prior to the Effective Date pursuant to the
Certificate Purchase Agreement or this Agreement for the initial Series
issued pursuant to the Transaction Documents, all of which have already
been duly filed and are in full force and effect, (B) the filing from
time to time of any amendments, assignments, continuation statements or
other documents which may become required pursuant to Sections 2.05(i)
or 3.03(b)(viii) of the Pooling and Servicing Agreement and (C) any
properly completed and executed UCC-3 termination statements which
shall have been delivered to the Program Agent on or before the
Effective Date.
(d) ENFORCEABILITY. Each Transaction Document to which it is
or is to be a party constitutes its legal, valid and binding obligation
enforceable against it in accordance with such Transaction Document's
terms (except as such enforceability may be limited by Debtor Relief
Laws). Each Transaction Document is in full force and effect and is not
subject, as to the Transferor or the Servicer, as the case may be, to
any specific dispute, offset, counterclaim or defense of the Transferor
or the Servicer, as the case may be.
(e) NO LITIGATION. There is no action, suit, investigation,
litigation or proceeding affecting it, pending or threatened before any
Governmental Authority or arbitrator that (i) could have a Material
Adverse Effect, (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
transactions contemplated hereby or (iii) could adversely affect the
income tax attributes of the Trust.
(f) POOLING AND SERVICING AGREEMENT REPRESENTATIONS AND
WARRANTIES. The Transferor's representations and warranties in Sections
2.03 and 2.04 of the Pooling and Servicing Agreement and the Servicer's
representations and warranties in Section 3.03 of the Pooling and
Servicing Agreement are true and correct in all material respects on or
as of the dates they were made or deemed made.
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ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. CONDITIONS PRECEDENT TO THE PURCHASE. The making
of the Purchase hereunder is subject to the following conditions precedent:
(a) The Bankruptcy Court shall have entered an order or orders
confirming the Plan of Reorganization, such order or orders shall have
not been judicially stayed and such order or orders shall be
satisfactory in form and substance to the Program Agent.
(b) The Parent shall not have waived any material condition of
the Plan of Reorganization without the consent of the Program Agent and
all material changes and deviations in the Plan of Reorganization from
the Current Plan shall be satisfactory in form and substance to the
Program Agent.
(c) The Plan of Reorganization shall be substantially
consummated (or will be substantially consummated with the
distributions required to be made with the proceeds of the drawings
under the Credit Agreement and the proceeds of the Purchases under the
Transaction Documents).
(d) The Program Agent shall have received on or before the
Purchase Date the following, each dated such date (unless otherwise
specified), in form and substance satisfactory to the Program Agent:
(i) Certified copies of the resolutions of the Board
of Directors of the Parent, the Servicer, each other
Originator, the Transferor and the Trustee approving each
Transaction 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.
(ii) A copy of (A) the charter of the Parent, the
Servicer, each other Originator and the Transferor 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
and (B) a certified true and correct copy of the charter of
the Parent as filed with the Secretary of State of Ohio on the
Purchase Date.
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(iii) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the Purchase Date, certifying that (A) the
Transferor has paid all franchise taxes to the date of such
certificate and (B) the Parent, the Servicer, each other
Originator and the Transferor are in good standing under the
laws of the jurisdiction of its incorporation.
(iv) A certificate of the Parent, the Servicer, each
other Originator and the Transferor, signed on behalf of the
Parent, the Servicer, each other Originator and the
Transferor, 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(d)(ii), (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).
(v) A certificate of the Secretary or an Assistant
Secretary (or, in the case of the Trustee, an Assistant
Treasurer) of the Parent, the Servicer, each other Originator,
the Transferor and the Trustee certifying the names and true
signatures of the officers of the Parent, the Servicer, each
other Originator, the Transferor 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.
(vi) A certificate of the Trustee, signed on its
behalf by its President or a Vice President or any Assistant
Treasurer, 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 Collateral
Investor Certificates.
(vii) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Parent, the Servicer, each other
Originator and the Transferor, in form and
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substance satisfactory to the Program Agent, 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.
(viii) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Parent, the Servicer, each other
Originator and the Transferor, in form and substance
satisfactory to the Program Agent, which shall include (A) a
"true sale" opinion with respect to the sales of Receivables
from each Originator to the Transferor 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 Transferor.
(ix) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Parent, the Servicer, each other
Originator and the Transferor, in form and substance
acceptable to the Program Agent, with regard to tax matters,
including Federal, Ohio and New York tax matters and to the
effect set forth in the first sentence of Section 3.07 of the
Pooling and Servicing Agreement.
(x) A favorable opinion of Xxxxxx & Xxxxxx, counsel
for the Trustee, in form and substance satisfactory to the
Program Agent.
(xi) A favorable opinion of Shearman & Sterling,
counsel for the Program Agent, in form and substance
satisfactory to the Program Agent.
(xii) Stamped-receipt copies or other evidence of
filing of proper financing statements covering the
Receivables, naming the applicable Originator as
seller/debtor, the Transferor or another Originator, as the
case may be, as purchaser/secured party and the Trustee or
Transferor, 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
Chargit's and the Transferor's respective first priority
interests in the Receivables and the assignment thereof by the
Transferor to the Trustee.
(xiii) Stamped-receipt copies or other evidence of
filing of proper financing statements covering the Receivables
and the other Trust Assets, naming the Transferor 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
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jurisdiction or other applicable law to perfect the Trustee's
first priority interest in the Trust Assets.
(xiv) Copies of proper financing statements (Form
UCC-3) and other documents to be duly filed on or about the
Purchase Date, if any, necessary to release all security
interests and other rights of any Person in the Receivables
granted by any Originator or the Transferor other than to the
Trustee or the secured parties under the Collateral Documents
(as defined in the Credit Agreement).
(xv) 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 Transferor (under
such Originator's or Transferor's present name and any
previous name) and which are filed in the jurisdictions in
which filings were made pursuant to Sections 4.01(d)(xii) and
4.01(d)(xiii) together with copies of such financing
statements (none of which (except those with respect to which
releases have been obtained pursuant to Section 4.01(d)(xiv)
above) shall cover any property which may be Receivables or
Collections).
(xvi) 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.
(xvii) An executed subordinated note substantially in
the form of Exhibit A to the Purchase Agreement between the
Transferor and Chargit, to be delivered by the Transferor to
Chargit.
(xviii) The Collateral Investor Certificates,
delivered in accordance with the provisions of Section
2.01(c).
(xix) Evidence that all bank accounts required to be
established and maintained under any Transaction Document
shall have been established.
(xx) Each Transaction Document duly executed by each
party thereto.
(xxi) Evidence of payment of all related fees and
expenses then due and payable in connection with the
Transaction Documents.
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Section 4.02. FURTHER CONDITIONS PRECEDENT TO THE PURCHASE.
The making of the Purchase hereunder is subject to the further conditions
precedent that, on the Purchase Date, the following statements shall be true
(and the acceptance by the Transferor of the proceeds of such Purchase shall
constitute a representation and warranty by the Transferor that on the Purchase
Date 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,
a Termination Event (as defined in each of the Purchase Agreements),
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 Transferor 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;
(d) The Pooling and Servicing Agreement, Series 1997-1
Supplement, Purchase Agreements, Parent Undertaking Agreement,
Intercreditor Agreement, Certificate Purchase Agreement and each other
Transaction Document shall be in full force and effect;
(e) After making the Purchase, the Collateral Invested Amount
shall not exceed the aggregate amount of the Collateral Investor's
Commitments on such day;
(f) The Program Agent shall have received by 1:00 p.m. (New
York City time), on the Purchase Date, the Daily Report, which shall be
prepared on a pro forma basis and shall show that the Transferor is in
compliance with all of the Transaction Documents (after giving effect
to the Purchase) to the extent a showing of such compliance is called
for in the form thereof;
(g) Each Originator shall have delivered to the Transferor and
the Program Agent the accounts receivable aged trial balance as of the
Purchase Date of each such Originator (which, if in magnetic tape or
diskette format, shall be compatible with the Transferor's, or, if
applicable, the Servicer's computer equipment);
(h) The Servicer shall have delivered to the Transferor, in
form and substance satisfactory to the Transferor and the Program
Agent, a completed Monthly Servicer's Report, together with a listing
of the Accounts under which all Receivables
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subject to each Transfer through the date of such Purchase have arisen,
for the most recently ended reporting period for which such Monthly
Servicer's Report as of the Purchase Date 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 Transferor and the Program 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, 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 Swap Agreement and
the Cap Agreement, which shall be in form and substance satisfactory to
the Program Agent;
(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 Program Agent with not less than three
Business Days' prior written notice;
(l) The combined aggregate notional amount of the Swap
Agreement and the Cap Agreement shall be equal to at least the sum of
the Class A Invested Amount and the Collateral Invested Amount, in each
case after giving effect to such Purchase or Increase; and
(m) At any time after the Reserve Account has an initial
credit balance equal to or exceeding the Reserve Account Required
Balance, the credit balance in the Reserve Account shall be equal to at
least the Reserve Account Required Balance.
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ARTICLE V
COVENANTS
Section 5.01. COVENANTS. Each of the Transferor and the
Servicer, as applicable, covenants and agrees that, unless the Required
Collateral Investors shall otherwise consent in writing, it will:
(a) PERFORMANCE OF AGREEMENTS. For the benefit of the Program
Agent and the Collateral Investors, perform on a timely basis each of their
respective agreements, warranties and indemnities under, and comply in all
material respects with each of the respective terms and provisions applicable to
it in, the Pooling and Servicing Agreement and the Series 1997-1 Supplement.
(b) CERTIFICATES. Furnish to the Program Agent a copy of each
certificate, report, statement, notice or other communication furnished by or on
behalf of the Transferor or the Servicer to the Series 1997-1
Certificateholders, the Trustee or the Rating Agencies (including all such
certificates, reports, statements, notices or other communications required to
be furnished thereby to the Trustee under any Transaction Document) concurrently
therewith and furnish to the Program Agent promptly after receipt thereof a copy
of each notice, demand or other communication received by or on behalf of the
Transferor or the Servicer, in each case, with respect to the Series 1997-1
Certificates, this Agreement, or any other Transaction Document.
(c) TIMELY PAYMENTS. Timely make all payments, deposits or
transfers, and give all instructions to transfer, in each case required to be
made by it hereunder and under any other Transaction Document.
ARTICLE VI
THE PROGRAM AGENT
Section 6.01. AUTHORIZATION AND ACTION OF THE PROGRAM AGENT.
Each Collateral Investor 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.
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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 wilful misconduct. Without limiting the generality of
the foregoing, the Program Agent (a) may consult with independent legal counsel
(including counsel for the Trustee, the Transferor 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 Transferor, the
Servicer or any Beneficiary and shall not be responsible to the Parent, any
Originator, the Transferor, the Servicer or any Beneficiary for any statements,
representations or warranties made in or in connection with this Agreement or
any of the 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
Transferor, any Originator, the Parent or the Servicer or to inspect the
property (including the books and records) of the Trust, the Trustee, the
Transferor, any Originator, the Parent or the Servicer, (d) shall not be
responsible to the Parent, any Originator, the Transferor, the Servicer or any
Beneficiary for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Collateral Investor
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 wilful misconduct on the part of the Program Agent.
Section 6.03. THE PROGRAM AGENT AND AFFILIATES. Citicorp North
America, Inc. and its Affiliates (including Citibank, N.A.) may generally engage
in any kind of business with the Transferor, 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 Citicorp North America, Inc. were not the
Program Agent and without any duty to account therefor to the Parent, any
Originator, the Transferor, the Servicer or any Beneficiary.
Section 6.04. AMENDMENTS, WAIVERS AND CONSENTS. Each
Collateral Investor and the Program Agent each reserves the right, in its sole
discretion (subject to the next sentence), to exercise any rights and remedies
available to such Collateral Investor or the
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Program Agent under the Transaction Documents or pursuant to applicable law, and
also to agree with the other parties hereto to any amendment, modification or
waiver of any Transaction Document, to the extent such Transaction Document
provides for, or requires, such Collateral Investor's or the Program Agent's
agreement, which agreements shall be binding on each Beneficiary.
Notwithstanding the foregoing, each of the Program Agent and each Collateral
Investor agrees for the benefit of the Collateral Investors that it shall not,
subject to the terms of the Transaction Documents:
(a) without the prior written consent of each of the affected
Collateral Investors,
(i) reduce in any manner the amount of, or delay the
timing of, distributions to be made to any Collateral Investor
Certificateholder or deposits of amounts to be so distributed,
or
(ii) reduce any fees payable to the Program Agent or
any Collateral Investor which relate to payments to the
Collateral Investors or delay the dates on which such fees are
payable, or
(iii) modify any provision relating to the Reserve
Account, or the amounts required to be deposited therein or
extend the Revolving Period, or
(iv) release the Parent from its obligations under
the Parent Undertaking Agreement, or
(v) amend or waive any Termination Event (as defined
in any Purchase Agreement) or Early Amortization Event under
any Transaction Document relating to the bankruptcy of the
Transferor, the Servicer or the Parent, or
(b) without the prior written consent of the Required
Collateral Investors,
(i) amend, modify or waive any provision of any
Transaction Document which would impair in any material
respect any rights expressly granted to an assignee or
participant, or
(ii) change the definitions of Express Spread
Percentage, Net Loss Percentage, Dilution Ratio, Eligible
Receivable, or Eligible Account, or
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(iii) amend any Early Amortization Event to increase
the maximum permitted Net Loss Percentage or Dilution Ratio,
or to decrease the minimum permitted Excess Spread Percentage,
or
(iv) waive violations of the maximum permitted levels
for the Net Loss Percentage or Dilution Ratio, or of the
minimum permitted level for the Excess Spread Percentage,
which violations occur for more than two consecutive months or
by more than 10% of such permitted levels for any time, or
(v) amend the amount of the Commitments.
Section 6.05. COLLATERAL INVESTOR CREDIT DECISION. Each
Collateral Investor acknowledges that it has, independently and without reliance
upon the Program Agent or any other Collateral Investor 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 Collateral Investor
also acknowledges that it will, independently and without reliance upon the
Program Agent or any other Collateral Investor 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
MISCELLANEOUS
Section 7.01. AMENDMENTS AND WAIVERS. Except to the extent
otherwise provided in Section 6.04, no amendment of any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by all parties hereto. 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.
Section 7.02. ASSIGNMENT. (a) At any time and from time to
time, any Collateral Investor may, by notice and delivery to the Program Agent
of a fully executed Transfer Supplement, assign to any other Person all or any
portion of its interest in the Certificates (which portion shall in no event
evidence less than $5,000,000 of the Collateral Invested Amount then held by
such Collateral Investor or, if less, the entire Collateral Invested Amount so
held by such Collateral Investor) (any such assignment being an "ASSIGNMENT");
PROVIDED that (i) such assignee is an Eligible Assignee and (ii) such assignment
shall comply with any applicable legal requirements including the Act. The
assignee shall, upon the effectiveness of such Transfer Supplement and delivery
thereof and of such other requested
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documentation to the Program Agent, become entitled to the benefits hereof and
subject to the obligations of the assignor hereunder.
(b) The Transferor agrees to execute or obtain such other
documentation as may be reasonably requested by any Collateral Investor in order
to effectuate any assignment under this Section 7.02 (PROVIDED that the
Transferor shall not have any obligation to amend any Transaction Document in
connection therewith), the costs of such documentation to be borne by
the Collateral Investor.
Section 7.03. RIGHTS OF ASSIGNEE. Upon any assignment in
accordance with this Article VIII, (a) the assignee receiving such assignment
shall have all of the rights of such assignor hereunder with respect to the
Collateral Investor Certificate (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 7.04. NOTICE OF ASSIGNMENT. Each assignor shall
provide notice to the Transferor, the Program Agent and the Trustee of any
assignment of any Collateral Investor Certificate (or portion thereof) or rights
associated therewith by such assignor to any assignee.
Section 7.05. REGISTER. The Program Agent shall maintain a
copy of each Transfer Supplement delivered to and accepted by it and a register
(the "REGISTER") for the recordation of the names and addresses of the
Collateral Investors and the Commitment of each Collateral Investor from time to
time and the Collateral Invested Amount outstanding from time to time. The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Transferor, the Program Agent, the Trustee and the
Collateral Investors may treat each Person whose name is recorded in the
Register as a Collateral Investor hereunder for all purposes of the Transaction
Documents. The Register shall be available for inspection by the Transferor, the
Parent, the Trustee or any Collateral Investor at any reasonable time and from
time to time upon reasonable prior notice.
Section 7.06. PARTICIPATIONS. At any time and from time to
time any Collateral Investor 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 its interest in
the Collateral Investor Certificates); PROVIDED, HOWEVER, that (i) such
Collateral Investor's obligations under this Agreement (including its
Commitment) shall remain unchanged, (ii) such Collateral Investor shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Transferor, the Program Agent and the other Collateral
Investors shall continue to deal solely and directly with such Collateral
Investor in connection with the rights of such Collateral Investor and the
obligations of such Collateral Investor under this Agreement and (iv) no
participant under any such
SERIES 1997-1 LOAN AGREEMENT
28
25
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 Collateral Investor
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 Collateral Investor 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 Transferor shall not, at any time,
be obligated to pay to any Collateral Investor any sum in excess of the sum the
Transferor would have been obligated to pay to such Collateral Investor
hereunder if such Collateral Investor had not sold any participation in its
rights and obligations under this Agreement.
Section 7.07. RESTRICTIONS ON ASSIGNMENTS AND PARTICIPATIONS.
Notwithstanding any provision of this Agreement to the contrary, no Collateral
Investor 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
Code) unless such Person shall have provided the Transferor and the Program
Agent with two original Internal Revenue Service forms 4224 (or a successor form
certifying that the income from the Collateral Investor Certificates is
effectively connected with the conduct of such Person's trade or business in the
United States). Notwithstanding Sections 7.02 and 7.06, no Collateral Investor
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 Code or (ii) any Person if,
following such assignment or sale to such other Person, the Trust would have
more than 100 beneficial owners of Certificates (taking into account the
attribution rules of Treasury Regulation Section 1.7704-2(h)). Notwithstanding
the preceding sentence, each Collateral Investor shall be entitled to assign (or
sell a participation in) its rights and obligations hereunder to a partnership
that is a securitization company managed by Citicorp North America, Inc.,
PROVIDED that the Transferor receives evidence reasonably satisfactory to it
that such sale or assignment will not cause the Trust to have at any time more
than 100 beneficial owners (taking into account the attribution rules of
Treasury Regulation Section 1.7704-2(h)).
Section 7.08. 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
SERIES 1997-1 LOAN AGREEMENT
29
26
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 Article II
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 7.09. 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, each of the Program Agent and each Collateral Investor is hereby
authorized by the Transferor 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 Collateral
Investor to or for the credit or the account of the Transferor against any and
all of the Obligations of the Transferor now or hereafter existing, to the
Program Agent, any Collateral Investor or 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 set-off by any Collateral Investor under this Section 7.09
against the Collateral Invested Amount shall reduce the Collateral Invested
Amount accordingly.
Section 7.10. BINDING EFFECT; SURVIVAL. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that nothing in the
foregoing shall be deemed to authorize any assignment not permitted by Section
7.02. 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 II shall be continuing and shall survive any termination of this
Agreement.
Section 7.11. CAPTIONS. 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 7.12. INTEGRATION. This Agreement, together with the
other Transaction Documents, contains a final and complete integration of all
prior expressions by the parties
SERIES 1997-1 LOAN AGREEMENT
30
27
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 7.13. CONFIDENTIALITY. The Trustee, the Program Agent
and the Collateral Investor Certificateholders agree, and shall cause their
agents or representatives, to hold in confidence all Confidential Information;
PROVIDED that nothing herein shall prevent any Collateral Investor
Certificateholder from delivering copies of any financial statements and other
documents constituting Confidential Information, or disclosing any other
Confidential Information, to (i) such Collateral Investor Certificateholder's
directors, officers, employees, agents and professional consultants, (ii) any
other Collateral Investor Certificateholder or any Rating Agency, (iii) any
Person to which such Collateral Investor Certificateholder offers to sell or
assign or sells or assigns such Collateral Investor 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 Collateral Investor Certificateholder, (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 or (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 such Collateral Investor Certificateholder, (b) in response to any subpoena
or other legal process or (c) in connection with any litigation to which such
Collateral Investor Certificateholder is a party.
Section 7.14. REIMBURSEMENT OF PROGRAM AGENT. Each Collateral
Investor will on demand reimburse the Program Agent its Pro Rata Share of 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 Collateral Investor Certificate in which such
Collateral Investor purchases any interest for which the Program Agent is not
promptly reimbursed by the Transferor or otherwise. Should the Program Agent
later be reimbursed by the Transferor for any such amount, the Program Agent
shall immediately pay to each Collateral Investor its Pro Rata Share of such
amount.
Section 7.15. LIMITATION OF LIABILITY. It is expressly
understood and agreed by the parties hereto that, except as otherwise expressly
provided in any Transaction Document, (a) 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
SERIES 1997-1 LOAN AGREEMENT
31
28
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 7.16. NO PROCEEDINGS. Notwithstanding any prior
termination of this Agreement, any Collateral Investor, the Trustee and the
Transferor, shall not, prior to the date which is one year and one day after the
last day on which any Investor Certificate shall have been outstanding,
acquiesce, petition or otherwise invoke or cause the Trust or the Transferor to
invoke the process of any Governmental Authority for the purpose of commencing
or sustaining a case against the Trust or the Transferor under any Federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or the Transferor or any substantial part of its property or
ordering the winding up or liquidation of the affairs of the Trust or the
Transferor.
Section 7.17. 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 7.18. SUBMISSION TO JURISDICTION. (a) 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.
(b) 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
SERIES 1997-1 LOAN AGREEMENT
32
29
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 7.19. CONSENT TO SERVICE OF PROCESS. Each party to
this Agreement irrevocably consents to service of process by personal delivery,
certified mail, postage prepaid or 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 7.20. 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.
SERIES 1997-1 LOAN AGREEMENT
33
Section 7.21. 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
Collateral Investors 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.
IN WITNESS WHEREOF, the parties hereto have caused this Series
1997-1 Loan 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 Transferor
By:
-----------------------------------------
Name:
Title:
Address: 0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
THE EL-BEE CHARGIT CORP.,
as Servicer
By:
-----------------------------------------
Name:
Title:
Address: 0000 Xx-Xxx Xxxx
Xxxxxx, Xxxx 00000
SERIES 1997-1 LOAN AGREEMENT
34
BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------------------
Name:
Title:
Address: Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
CITICORP NORTH AMERICA, INC.,
as Program Agent
By:
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Commitment: $8,000,000 CITIBANK, N.A., as a Collateral Investor
By:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SERIES 1997-1 LOAN AGREEMENT
35
EXHIBIT A
FORM OF TRANSFER SUPPLEMENT
Reference is made to the Series 1997-1 Loan Agreement dated as
of December 30, 1997 (as amended, supplemented or otherwise modified from time
to time, the "LOAN AGREEMENT") among The El-Bee Receivables Corporation, as
Transferor, The El-Bee Chargit Corp., as Servicer, the financial institutions
party thereto, as Collateral Investors (the "COLLATERAL INVESTORS"), Citicorp
North America, Inc., as Program Agent for the Collateral Investors, and Bankers
Trust Company, as Trustee. Terms defined in the Loan 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 Loan 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 Loan Agreement and any other
Transaction Document, including the Assignor's Commitment, Pro Rata Share, and
Collateral 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 Pro Rata Share 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 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 Transferor, 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.
SERIES 1997-1 LOAN AGREEMENT
36
A-2
3. The Assignee (i) confirms that it has received a copy of
the Loan Agreement, the Pooling and Servicing Agreement, together with copies of
any financialstatements 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 Collateral Investor 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 Collateral Investor; (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 Transferor with two Internal Revenue Service
forms 1001 or 4224 (or a successor form) certifying that the income from the
Collateral Investor 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 2.05 of the Loan
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 Loan Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Collateral Investor
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 Loan Agreement and under any
other Transaction Document.
SERIES 1997-1 LOAN AGREEMENT
37
A-3
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 Loan Agreement and the Assigned Interests (including, without
limitation, all payments of the Collateral Invested Amount, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Loan 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.
SERIES 1997-1 LOAN AGREEMENT
38
SCHEDULE 1
TO
TRANSFER SUPPLEMENT
Collateral Investor Commitment assigned: $__________
Pro Rata Share assigned: __________%
Assignor's Collateral Investor Commitment
after assignment: $__________
Assignor's Collateral Investor Commitment
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:
SERIES 1997-1 LOAN AGREEMENT
39
2
Accepted this ____ day
of _____________, ____
CITICORP NORTH AMERICA, INC.,
as Program Agent
By________________________________
Name:
Title:
SERIES 1997-1 LOAN AGREEMENT