XXXXXXXX'X CREDIT CORPORATION
TRANSFEROR
XXXXXXXX'X, INC.
SERVICER
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
ON BEHALF OF THE CERTIFICATEHOLDERS
OF THE
XXXXXXXX'X CREDIT CARD MASTER TRUST
______________________________
AMENDMENT NO. 1
TO THE
MASTER POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 2, 1998
______________________________
Exhibit 99.2
Amendment No. 1 to the Master Pooling and Servicing Agreement dated as
of February 2, 1998 by and among Xxxxxxxx'x Credit Corporation, as Transferor,
Xxxxxxxx'x, Inc., as Servicer and Norwest Bank Minnesota, National
Association, as Trustee
THIS AMENDMENT NO. 1 ("Amendment") to the Master Pooling and Servicing
Agreement, dated as of August 21, 1997 (the "Master Pooling and Servicing
Agreement"), dated as of February 2, 1998, is by and among XXXXXXXX'X CREDIT
CORPORATION, a Nevada corporation, (the "Transferor"), XXXXXXXX'X, INC., a
Tennessee corporation, (the "Servicer"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee").
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other party and, to the extent provided
herein or in any Supplement, for the benefit of the Certificateholders and any
Enhancement Provider:
W I T N E S S E T H
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WHEREAS, the parties hereto are authorized by Section 13.1(a) of the Master
Pooling and Servicing Agreement to add to, change or eliminate any of the
provisions of the Pooling and Servicing Agreement, from time to time; and
NOW, THEREFORE, in consideration of the mutual promises contained herein,
in the Master Pooling and Servicing Agreement and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. AMENDMENTS TO THE MASTER POOLING AND SERVICING AGREEMENT
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1.1 The definition of "Additional Account Cut-Off Date" in Section 1.1 of
the Master Pooling and Servicing Agreement is amended in its entirety to read as
follows :
"Additional Account Cut-Off Date" shall mean with respect to any
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Additional Account the last day of the monthly period preceding the Additional
Account Closing Date; provided, however, in the case of the acquisition of
Additional Accounts whether by merger, consolidation or other acquisition of a
business or part of a business, shall be such day as the Servicer may designate
prior to the effective time of such merger, consolidation or other acquisition.
1.2 The definition of "Eligible Originator" in Section 1.1 of the Master
Pooling and Servicing Agreement is amended in its entirety to read as follows:
"Eligible Originator" shall mean (i) each of the Sellers and their
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respective successors and assigns, (ii) the Bank, (iii) any of the Sellers'
Affiliates or (iv) any other originator or acquirer of Receivables that is a
party to a Receivables Purchase Agreement, provided that, with respect to
clauses (iii) and (iv), the Transferor shall have met the Rating Agency
Condition and shall have delivered such notice(s) of compliance with such Rating
Agency Condition to the Trustee and the Servicer."
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1.3 The definition of "Sellers" in Section 1.1 of the Master Pooling and
Servicing Agreement is amended in its entirety to read as follows:
"Sellers" shall mean X.X. Xxxxxxxxx'x, Inc., XxXxx'x, Inc., Parisian,
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Inc., Xxxxxxxx'x, Inc. and the Bank and their successors and assigns, and,
subject only to the Rating Agency Condition, such other Affiliates of the
Company as the Transferor may designate from time to time."
1.4 Subservicer
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(a) The definition of "Subservicer" in Section 1.1 of the Master
Pooling and Servicing Agreement is amended in its entirety to read as follows:
"Subservicers" shall mean initially XxXxx'x, Inc. and Xxxxxx Xxxxx
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Xxxxx & Co. and any Person thereafter appointed by the Servicer as a subservicer
of the Receivables."
(b) Each reference in Sections 3.1(b), 3.2 and 8.7 of the Master
Pooling and Servicing Agreement to the "Subservicer" shall be amended to read
"Subservicers."
(c) The reference to XxXxx'x, Inc. as the initial Subservicer in
Section 3.1(b) of the Master Pooling and Servicing Agreement shall be amended to
read as follows:
"The Servicer has designated its Affiliates, XxXxx'x, Inc., and
Xxxxxx Xxxxx Xxxxx & Co. as the initial Subservicers."
(d) The reference to XxXxx'x, Inc. as Subservicer in Section 8.7 of
the Master Pooling and Servicing Agreement shall be amended to read as
"....XxXxx'x, Inc. or Xxxxxx Xxxxx Xxxxx & Co...."
SECTION 2. AMENDMENT TO SERVICER PROVISIONS
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Article VIII - Other Matters Relating to the Servicer is hereby amended by
adding a new Section 8.9 which will read in its entirety as follows:
Section 8.9 Illinois Personal Property Tax. Xxxxxxxx'x, Inc. shall
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indemnify and hold harmless the Certificateholders, the Certificate Owners,
and the Trustee, including the Trustee's officers, directors, agents and
employees, from and against any loss, liability, expense, damage or injury
(net of any benefit realized), that are suffered or sustained by the Trust,
the Trustee or any Certificate Owner or Certificateholder as a result of
and to the extent that the State of Illinois (or its taxing authority)
determines that the Trust is a partnership and that the Illinois
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Personal Property Replacement Income Tax (the "Replacement Tax") is
applicable to the Trust and, as a consequence, any Replacement Tax
(including any interest or penalties with respect thereto or arising from a
failure to comply therewith) are required to be paid by the Trust, the
Certificate Owners or the Certificateholders as a result of such
determination. The foregoing indemnity shall terminate upon delivery to the
Trustee of the following: (i) evidence of any repeal or modification of the
Replacement Tax by the State of Illinois (or its taxing authority) which
would make it no longer potentially applicable to the Trust, the Trustee or
any Certificate Owner or Certificateholder (in their capacities as such
hereunder); (ii) any determination, interpretation, ruling or regulation in
writing from the State of Illinois or its taxing authority to the effect
that the Replacement Tax would not be applicable to entities similarly
situated to the Trust, generally (accompanied by an opinion of counsel
specified in clause (iv) below), or to the Trust, specifically; (iii) any
private or public ruling received by the Trust, or any interpretive or
other release in writing by the Internal Revenue Service that any entity
similarly situated to the Trust generally (accompanied by an opinion of
counsel specified in clause (iv) below), or to the Trust specifically,
would not be taxed as a partnership for federal income tax purposes; or
(iv) written opinion of any nationally recognized law firm admitted to
practice in the State of Illinois to the effect that the Replacement Tax
would not apply to the Trust, the Trustee or any Certificate Owner or
Certificateholder (in their capacities as such hereunder), or, if the State
of Illinois at such date continues to follow the federal income tax and
Treasury determinations as to whether an entity is taxable as a partnership
or if and to the extent the State of Illinois is bound by any FASIT
election made by the Trust, from any other law firm nationally recognized
with respect to federal income tax matters to the effect that the Trust and
the mere ownership of Certificates issued thereunder would not cause the
Trust, Trustee, the Certificate Owners and the Certificateholders to be
taxed as a partnership for federal income tax purposes.
SECTION 3. REPRESENTATIONS AND WARRANTIES
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Each of the Transferor and the Servicer represents and warrants that:
(a) Its execution, delivery and performance of this Amendment are within
its corporate powers, have been duly authorized by all necessary corporate
action and do not require any consent or approval which has not been obtained.
(b) This Amendment and the Master Pooling and Servicing Agreement as
amended hereby are legal, valid and binding obligations of it, enforceable in
accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles.
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SECTION 4. CONDITIONS PRECEDENT
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This Amendment shall become effective as of its date, provided that all of
the following conditions are met:
(a) The Servicer shall have furnished the Trustee with an Officer's
Certificate to the effect that the Amendment will not materially and adversely
affect the interests of any Certificateholders;
(b) The Amendment will not cause the Trust to be characterized as a
corporation for Federal income tax purposes or otherwise have a material adverse
effect on the Federal income taxation of any Series;
(c) The Servicer shall have given each Rating Agency ten (10) Business
Days' prior written notice of the Amendment and shall have received written
confirmation from each Rating Agency rating the affected Series that the Rating
Agency Condition will be met, where appropriate;
(d) The Trustee shall receive and shall be permitted to rely upon an
Opinion of Counsel to the effect that the conditions and requirements of Section
13.1(a) of the Master Pooling and Servicing Agreement have been satisfied; and
(e) The Transferor shall deliver prior written notice of the Amendment to
each Rating Agency.
SECTION 5. MISCELLANEOUS
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(a) Applicability of the Master Pooling and Servicing Agreement
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In all respects not inconsistent with the terms and provisions of this
Amendment, the provisions of the Master Pooling and Servicing Agreement are
hereby ratified, approved and confirmed.
(b) Headings
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The captions in this Amendment are for convenience of reference only and
shall not define or limit the provisions hereof.
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(c) Counterparts
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This Amendment may be executed in counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
but one and the same instrument.
(d) Governing Law
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THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXXXX'X CREDIT CORPORATION,
as Transferor
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXXXX'X, INC.,
as Servicer
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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