Exhibit 99.6
OMNIBUS AMENDMENT NO. 1
THIS OMNIBUS AMENDMENT NO. 1 is entered into as of October 24, 2003
(this "Amendment"), among the parties named on the signature pages hereof.
PRELIMINARY STATEMENTS
1. Reference is hereby made to the following agreements:
(a) Xxxxx-Xxxxxxx Master Trust Pooling and Servicing Agreement,
dated as of December 30, 1997 among The El-Bee Receivables Corporation
(the "Transferor"), The El-Bee Chargit Corp. (the "Servicer") and Deutsche
Bank Trust Company Americas (f/k/a Bankers Trust Company), as trustee (in
such capacity, the "Trustee") (as amended, restated, supplemented or
otherwise modified from time to time, the "PSA");
(b) Xxxxx-Xxxxxxx Master Trust Series 2000-1 Supplement, dated as
of May 19, 2000 among the Transferor, the Servicer and the Trustee (as
amended by that certain Amendment No. 1 dated as of July 9, 2002, that
certain Amendment No. 2 dated as of July 8, 2003, that certain Amendment
No. 3 dated as of July 24, 2003 and as amended, restated, supplemented or
otherwise modified from time to time, the "Supplement"); and
(c) Series 2000-1 Certificate Purchase Agreement, dated as of May
19, 2000 among the Transferor, CRC Funding, LLC (as successor to Corporate
Receivables Corporation) ("CRC Funding"), EagleFunding Capital Corporation
("EagleFunding")and the other commercial paper conduits from time to time
party thereto, as Conduit Purchasers (the "Conduit Purchasers"), Citibank,
N.A. ("Citibank"), EagleFunding and the other financial institutions from
time to time party thereto, as Committed Purchasers (the "Committed
Purchasers"), Citicorp North America, Inc. ("CNAI"), Fleet Securities Inc.
("FSI") and the other financial institutions from time to time party
thereto, as Managing Agents (the "Managing Agents"), CNAI, as Program
Agent (in such capacity, the "Program Agent") and the Trustee (as amended
by that certain Amendment No. 1 dated as of July 9, 2002, that certain
Amendment No. 2 dated as of July 8, 2003 and as amended, restated,
supplemented or otherwise modified from time to time, the "Certificate
Purchase Agreement").
2. The parties hereto have agreed to amend the Supplement and the
Certificate Purchase Agreement upon the terms and conditions set forth herein.
3. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the PSA, the Supplement or the
Certificate Purchase Agreement, as applicable.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Assignment and Acceptance. Subject to the satisfaction of the
conditions precedent set forth in Section 6 below:
(a) FSI, EagleFunding and Fleet National Bank (collectively the
"Fleet Assignors") hereby sell and assign, without recourse, to Bank One, NA
(Main Office Chicago) ("Bank One") and Falcon Asset Securitization Corporation
("Falcon") (collectively the "Assignees") and the Assignees hereby purchase,
accept and assume, without recourse to or representation or warranty of any kind
(except as set forth below) from the Fleet Assignors, effective as of the date
first written above (the "Effective Date"), all of the Fleet Assignors'
respective rights and obligations under the PSA, the Supplement, the Certificate
Purchase Agreement and the other Transaction Documents, together with the rights
of the Fleet Assignors to payment in respect of its Pro Rata Share of the Class
A Invested Amount (but excluding accrued and unpaid interest, and the amount of
any accrued and unpaid fees as of the Effective Date (such interest and fees,
the "Accrued Fleet Amounts")) and the Assignees shall pay to FSI on the
Effective Date an amount equal to $41,874,704.52 in consideration thereof.
(b) Each Assignee hereby agrees to be bound by all the agreements
set forth in the PSA, the Supplement, the Certificate Purchase Agreement and the
other Transaction Documents, copies of which have been received by each such
Assignee. From and after the Effective Date:
(i) the Fleet Assignors shall relinquish all of their
respective rights and be released from all of their respective obligations
under the PSA, the Supplement, the Certificate Purchase Agreement and the
other Transaction Documents and shall cease to be parties thereto; and
(ii) each Assignee shall be a party to and be bound by the
provisions of the PSA, the Supplement, the Certificate Purchase Agreement
and the other Transaction Documents, to the extent of the interests
assigned pursuant hereto, have the rights and obligations of:
(A) in the case of Bank One, a Managing Agent (on
behalf of a Purchaser Group consisting of Falcon, as the Conduit
Purchaser and Bank One as the Committed Purchaser);
(B) in the case of Falcon, a Conduit Purchaser; and
(C) in the case of Bank One, a Committed Purchaser.
(c) Immediately after giving effect to the assignments
contemplated in paragraph (a) above, (i) CRC Funding's Pro Rata Share of the
Class A Invested Amount shall be $41,874,704.54; (ii) Falcon's Pro Rata Share of
the Class A Invested Amount shall be $41,874,704.54; (iii) EagleFunding's Pro
Rata Share of the Class A Invested Amount shall be zero, (iv) Citibank, in its
capacity as a Committed Purchaser shall have a Commitment of $50,000,000 ; (v)
Bank One, in its capacity as a Committed Purchaser shall have a Commitment of
$50,000,000 and (vi) Fleet shall have a Commitment of zero.
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(d) On or prior to the Effective Date, (i) CNAI shall surrender
for exchange to the Trustee, Xxxxx-Xxxxxxx Master Trust, Series 2000-1 Class A
Floating Rate Certificate, Certificate No. A-1 issued May 19, 2000 and shall
execute a written instrument of transfer with respect thereto in a form
satisfactory to the Trustee, (ii) FSI shall surrender for exchange to the
Trustee, Xxxxx-Xxxxxxx Master Trust, Series 2000-1 Class A Floating Rate
Certificate, Certificate No. A-2 issued May 19, 2000 and shall execute a written
instrument of transfer with respect thereto in a form satisfactory to the
Trustee and (iii) the Transferor shall, in accordance with Section 6.02 of the
PSA, execute and deliver to the Trustee, an authentication order directing the
Trustee to authenticate and issue (x) to CNAI, an Xxxxx-Xxxxxxx Master Trust,
Series 2000-1 Class A Floating Rate Certificate in the principal amount of
$50,000,000 and registered in the name of CNAI, as Managing Agent on behalf of
the Purchasers in its related Purchaser Group and (y) to Bank One, an
Xxxxx-Xxxxxxx Master Trust, Series 2000-1 Class A Floating Rate Certificate in
the principal amount of $50,000,000 and registered in the name of Bank One, as
Managing Agent on behalf of the Purchasers in its related Purchaser Group. Upon
its receipt of such authentication order, the Trustee shall authenticate and
issue to CNAI and Bank One, the Investor Certificates described in clauses (x)
and (y) hereof and shall register such Investor Certificates in the Certificate
Register in accordance with Section 6.03 of the PSA.
(e) Each of the parties hereto hereby agrees to take such actions
as may be necessary in order to effectuate the surrender, exchange and issuance
of the Investor Certificates described in paragraph (d) above, including,
without limitation, executing any and all documents, agreements, certificates or
instruments as may be required pursuant to the terms of the PSA or requested by
any other party hereto for such purpose.
Section 2. Amendment to Supplement. Subject to the satisfaction of the
conditions precedent contained in Section 6 below, the Supplement is hereby
amended as follows:
(a) The definition of "Amortization Date" contained in Section
2.01 of the Supplement is hereby amended by deleting therefrom the reference to
"July 9, 2005" and replacing it with "July 6, 2004."
(b) Section 3.07(c) of the Supplement is hereby amended be
deleting therefrom the reference to "A-1+" and replacing it with "A-1".
Section 3. Waiver of Series Early Amortization Event. Subject to the
satisfaction of the conditions precedent contained in Section 6 below, each of
CNAI, CRC Funding, Citibank, Bank One and Falcon, being all of the Investor
Certificateholders of the Series 2000-1 Certificates after giving effect to the
assignments contemplated by Section 1.1(a) hereof and the Trustee, hereby waive
the occurrence of a Series Early Amortization Event under Section 6.01(j) of the
Supplement as a result of a Change of Control of the Parent. Except as provided
in the foregoing sentence, this Amendment shall not operate as a waiver of any
other Series Early Amortization Event or of any right, power, or remedy of the
Program Agent, the Managing Agents, the Purchasers or the Trustee under the
Supplement, the Certificate Purchase Agreement or any other Transaction
Document.
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Section 4. Consent of Investor Certificateholders. Each of CNAI, CRC
Funding, Citibank, Bank One and Falcon, being all of the Investor
Certificateholders of the Series 2000-1 Certificates after giving effect to the
assignments contemplated by Section 1.1(a) hereof, hereby:
(a) consent to:
(i) The amendments to the Supplement described in Section 2
hereof; and
(ii) The Trustee's consent to the termination of the
Collection Account Letters as in effect on the date hereof with respect to
the Store Accounts notwithstanding the requirements of Section 4.02 of the
PSA and the execution and delivery by the Servicer of one or more control
agreements or blocked account agreements in replacement thereof in
substantially the form attached as Exhibit A hereto; and
(b) direct the Trustee to execute this Amendment and that certain
Intercreditor Agreement, dated as of the date hereof, by and among the Program
Agent, the Transferor, the Servicer, The Xxxxx-Xxxxxxx Stores, Corp., the
Trustee and General Electric Capital Corporation.
Section 5. Amendments to Certificate Purchase Agreement. Subject to the
satisfaction of the conditions precedent contained in Section 6 below, the
Certificate Purchase Agreement is hereby amended as follows:
(a) The definition of "CP Rate" contained in Section 1.01 of the
Certificate Purchase Agreement is hereby amended by deleting clause (b)
therefrom in its entirety and replacing it with the following:
"(b) with respect to any Conduit Purchaser which is a member
of the Purchaser Group for which Bank One is the Managing Agent, the
sum of (i) discount or yield accrued on Commercial Paper of such
Conduit Purchaser subject to any particular pooling arrangement by
such Conduit Purchaser, but excluding Commercial Paper issued by
such Conduit Purchaser for a tenor and in an amount specifically
requested by any Person in connection with any agreement effected by
Conduit ("Pooled Commercial Paper") on such day, plus (ii) any and
all accrued commissions in respect of placement agents and
Commercial Paper dealers, and issuing and paying agent fees
incurred, in respect of such Pooled Commercial Paper for such day,
plus (iii) other costs associated with funding small or odd-lot
amounts with respect to all receivable purchase facilities which are
funded by Pooled Commercial Paper for such day, minus (iv) any
accrual of income net of expenses received on such day from
investment of collections received under all receivable purchase
facilities funded substantially with Pooled Commercial Paper, minus
(v) any payment received on such day net of expenses in respect of
Breakage Costs related to the prepayment of the Class A Invested
Amount of such Conduit Purchaser pursuant to the terms of any
receivable purchase facilities funded substantially with Pooled
Commercial Paper; provided that, in addition to the foregoing costs,
if the Seller shall request any Increase during any period of time
determined by Bank One in its sole discretion to result in an
incrementally higher CP Rate applicable to such Increase, such
Increase shall, during such period, be deemed to be funded by such
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Conduit Purchaser in a special pool (which may include capital
associated with other receivable purchase facilities) for purposes
of determining such CP Rate applicable only to such special pool and
charged each day during such period against such Increase."
(b) The definition of "Managing Agent's Account" contained in
Section 1.01 of the Certificate Purchase Agreement is hereby amended by deleting
clause (b) therefrom in its entirety and replacing it with the following:
"(b) with respect to Bank One, that certain account as shall
be designated by Bank One to the Transferor, the Servicer and the
Trustee in writing."
(c) The definition of "Purchaser Group Limit" contained in Section
1.01 of the Certificate Purchase Agreement is hereby amended by deleting
therefrom the references therein to "$67,500,000" and replacing them with
"$50,000,000."
(d) The definition of "Series 2000-1 Class A Purchase Limit"
contained in Section 1.01 of the Certificate Purchase Agreement is hereby
amended by deleting the reference therein to "$135,000,000" and replacing it
with "$100,000,000."
Section 6. Conditions to Effectiveness. This Amendment shall become
effective and be deemed effective as of the date hereof, if, and only if (a) the
Program Agent shall have received duly executed original counterparts of (i)
this Amendment from each of the parties hereto and (ii) each of the documents,
agreements, certificates and other items listed on Schedule I attached hereto in
form and substance satisfactory to the Program Agent and (b) the amounts to be
paid pursuant to Section 1(a) shall have been paid and FSI shall have been paid
$41,516.85 by the Transferor in respect of Accrued Fleet Amounts. This Amendment
shall, by agreement of the parties hereto, become effective notwithstanding the
failure to satisfy any other condition set forth in the Supplement or
Certificate Purchase Agreement for amendment thereof.
Section 7. Reference and Effect.
(a) Except as specifically amended hereby, the Supplement and the
Certificate Purchase Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof.
(b) On and after the Effective Date, each reference in the
Supplement or the Certificate Purchase Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import referring to the
Supplement or the Certificate Purchase Agreement, as applicable, and each
reference to the Supplement or the Certificate Purchase Agreement, as
applicable, in any certificate delivered in connection therewith, shall mean and
be a reference to the Supplement or the Certificate Purchase Agreement as
amended hereby.
Section 8. Representations and Warranties. Each of the Transferor and the
Servicer represents and warrants to each of the other parties hereto, as to
itself, that:
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(a) This Amendment and any other certificate, instrument, document
or agreement executed and delivered by it in connection with this Amendment have
been duly authorized, executed and delivered by it and constitute its legal,
valid and binding obligation, enforceable in accordance with its terms except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(b) After giving effect to this Amendment, the representations and
warranties set forth in the Certificate Purchase Agreement are true and correct
in all material respects with the same effect as if made on the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date.
(c) After giving effect to this Amendment, no Servicer Default,
Trust Early Amortization Event or Series 2000-1 Early Amortization Event has
occurred and is continuing and it is in compliance in all material respects with
the covenants contained in the PSA, the Supplement and the Certificate Purchase
Agreement.
Section 9. Miscellaneous.
(a) APPLICABLE LAW. THIS AMENDMENT AND CONSENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
(c) Expenses. The Transferor agrees to reimburse the Program Agent
for all out-of-pocket expenses incurred by the Assignors, the Assignees and the
Program Agent, in connection with this Amendment, including the reasonable fees,
charges and disbursements of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Program Agent.
Rest of Page Intentionally Left Blank
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
written above.
THE EL-BEE RECEIVABLES CORPORATION,
as Transferor
By: ____________________________________
Name:
Title:
THE EL-BEE CHARGIT CORP.,
as Servicer
By: ____________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Trustee
By: ____________________________________
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as Program Agent and as a Managing Agent
By: ____________________________________
Name:
Title:
Signature Page to Omnibus Amendment No. 1
CITIBANK, N.A.,
as a Committed Purchaser
By: ____________________________________
Name:
Title:
CRC FUNDING, LLC (as successor to Corporate
Receivables Corporation), as a Conduit
Purchaser
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: ______________________________
Name:
Title:
Signature Page to Omnibus Amendment No. 1
FLEET SECURITIES INC.,
as an Assignor
By: ____________________________________
Name:
Title:
FLEET NATIONAL BANK,
as an Assignor
By: ____________________________________
Name:
Title:
EAGLEFUNDING CAPITAL CORPORATION,
as an Assignor
By: Fleet Securities Inc.,
as Attorney-in-Fact
By: ______________________________
Name:
Title:
Signature Page to Omnibus Amendment No. 1
BANK ONE, NA (Main Office Chicago),
as a Managing Agent and as a Committed
Purchaser
By: ____________________________________
Name: Xxxxxxx Xxxxxxxxx
Title: Director, Capital Markets
FALCON ASSET SECURITIZATION CORPORATION, as
a Conduit Purchaser
By: ____________________________________
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Omnibus Amendment No. 1
SCHEDULE I
Conditions Precedent Documents
A. BON-TON RECEIVABLES PURCHASE FACILITY
1. Master Amendment to Receivables Purchase Agreement, dated as of
October 24, 2003 (the "Master Amendment"), among The Bon-Ton Receivables
Partnership, L.P., a Pennsylvania limited partnership, (the "Seller" and the
"Collection Agent"), BTRGP, Inc., Falcon Asset Securitization Corporation
("Falcon"), Charta, LLC ("Charta") and EagleFunding Corporation
("EagleFunding"), as Conduits, certain financial institutions party thereto as
Investors, Bank One, NA (Main Office Chicago) ("Bank One"), Citicorp North
America, Inc. ("CNAI") and Fleet Securities, Inc. ("FSI"), as Managing Agents,
and Bank One, as Agent (the "Agent"), together with the marked Copy of Second
Amended and Restated Receivables Purchase Agreement, dated as of January 17,
2003 (the "Agreement"), among the Seller, the Collection Agent, BTRGP, Inc.,
Falcon and Charta, as Conduits, certain financial institutions party thereto as
Investors, Bank One and CNAI, as Managing Agents and the Agent attached as
Exhibit A thereto.
2. Amendment No. 1 to Transfer Agreement, dated as of October 24, 2003
("Amendment No. 1") by and between The Bon-Ton Department Stores, Inc. (the
"Originator") and the Seller, together with the marked Copy of Amended and
Restated Transfer Agreement, dated as of January 17, 2003 (the "Transfer
Agreement"), between The Bon-Ton Department Stores, Inc. (the "Originator") and
The Bon-Ton Receivables Partnership, L.P., as Buyer attached as Exhibit A
thereto.
3. Performance Undertaking, dated as of October 24, 2003 (the
"Undertaking") by The Bon-Ton Stores, Inc. and The Bon-Ton Corp. (each a
"Performance Guarantor") in favor of the Agent.
4. Amended and Restated Intercreditor Agreement, dated as of October
24, 2003 (the "Intercreditor Agreement") by and among General Electric Capital
Corporation ("GECC"), the Originator, the Seller and the Agent.
5. Third Amended and Restated Fee Letter, dated as of October 24, 2003
(the "Fee Letter") among the Seller, CNAI and Bank One.
6. Fee Letter, dated as of October 24, 2003 between the Seller and CNAI
(the "CNAI Fee Letter")
7. Certificate of the Assistant Secretary of BTRGP, Inc. certifying (i)
a copy of the resolutions of the Board of Directors of the BTRGP, Inc.,
authorizing the execution, delivery and performance by BTRGP, Inc. of the Master
Amendment, Amendment No. 1, the Intercreditor Agreement, the Fee Letter and the
other documents to be delivered by it in connection with such agreements, both
for itself and on behalf of the Seller (ii) the names and signatures of the
officers authorized on its behalf and on behalf of the Seller to execute such
documents and any other documents to be delivered by it in connection with such
agreements, and (iii) a copy of the by-laws of BTRGP, Inc. and attached thereto,
and (iv) a copy of the Seller's partnership agreement attached thereto.
8. Certificate of the Assistant Secretary of the Originator certifying
(i) a copy of the resolutions of the Board of Directors of the Originator
authorizing the execution, delivery and performance by the Originator of the
Master Amendment, Amendment No. 1, the Intercreditor Agreement and the other
documents to be delivered by it in connection with such agreement, (ii) the
names and signatures of the officers authorized on its behalf to execute such
documents and any other documents to
be delivered by it in connection with such agreement, and (iii) a copy of the
by-laws of the Originator attached thereto.
9. Certificates of organization of the Seller, BTRGP, Inc. and the
Originator certified by the Secretary of the Commonwealth of Pennsylvania.
10. Good Standing Certificates for the Seller, BTRGP, Inc. and the
Originator issued by the Secretary of the Commonwealth of Pennsylvania.
11. Opinion of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, counsel for the
Seller, relating to general corporate matters.
12. Bring-down Opinion of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP,
counsel for the Seller, relating to perfection and priority.
13. Bring-down Opinion of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP,
counsel for the Seller, relating to true sale and nonconsolidation.
B. THE XXXXX-XXXXXXX MASTER TRUST, CLASS A CERTIFICATES, SERIES 2000-1
14. Intercreditor Agreement, dated as of October 24, 2003 (the
"Xxxxx-Xxxxxxx Intercreditor Agreement") by and among the Program Agent, the
Transferor, the Servicer, The Xxxxx-Xxxxxxx Stores, Corp., the Trustee and GECC.
15. Fee Letter, dated as of October 24, 2003 (the "Xxxxx-Xxxxxxx Fee
Letter") by and between the Transferor and Bank One.
16. Deposit Account Control Agreement, dated as of October 24, 2003 (the
"Control Agreement") by and among Fifth Third Bank, The Xxxxx-Xxxxxxx Stores,
Corp. and GECC.
17. Collection Account Letter, dated as of October 24, 2003 by and among
Fifth Third Bank, The Xxxxx-Xxxxxxx Stores Corp., the Servicer and the Trustee.
18. Liquidity Agreement, dated as of October 24, 2003 by and among
Falcon, the "Liquidity Providers" thereunder and Bank One, as agent.
19. Certificate of the Assistant Secretary of the Transferor certifying
(i) a copy of the resolutions of the Board of Directors of the Transferor,
authorizing the execution, delivery and performance by the Transferor of the
Omnibus Amendment, the Waiver, the Xxxxx-Xxxxxxx Intercreditor Agreement, the
Xxxxx-Xxxxxxx Fee Letter and the other documents to be delivered by it in
connection with such agreements, (ii) the names and signatures of the officers
authorized on its behalf and on behalf of the Transferor to execute such
documents and any other documents to be delivered by it in connection with such
agreements, and (iii) a copy of the by-laws of the Transferor attached thereto.
20. Certificate of the Assistant Secretary of the Servicer certifying
(i) a copy of the resolutions of the Board of Directors of the Servicer
authorizing the execution, delivery and performance by the Servicer of the
Omnibus Amendment, the Waiver, the Xxxxx-Xxxxxxx Intercreditor Agreement and the
other documents to be delivered by it in connection with such agreement, (ii)
the names and signatures of the officers authorized on its behalf to execute
such documents and any other documents to be delivered by it in connection with
such agreement, and (iii) a copy of the by-laws of the Servicer attached
thereto.
21. Certificate of Incorporation of the Transferor, certified by the
Secretary of State of
Delaware.
22. Certificate of Incorporation of the Servicer, certified by the
Secretary of State of Ohio.
23. Good Standing Certificate for the Transferor issued by the Secretary
of State of Delaware
24. Good Standing Certificate for the Servicer issued by the Secretary
of State of Ohio.
25. Legal opinion of Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the
Transferor and the Servicer, relating to (i) general corporate matters, and (ii)
enforceability.
26. Authentication Order executed by the Transferor directing the
Trustee to execute two new Class A Certificates in favor of CNAI and Bank One
27. New Class A Certificate issued to CNAI.
28. New Class A Certificate issued to Bank One.
29. Letter of Representations executed by Bank One to the Trustee.
