1
Exhibit 10(b)
EXECUTION COPY
================================================================================
▇▇▇▇▇-▇▇▇▇▇▇▇ MASTER TRUST
SERIES 2000-1 SUPPLEMENT
Dated as of May 19, 2000
among
THE EL-BEE RECEIVABLES CORPORATION,
AS TRANSFEROR,
THE EL-BEE CHARGIT CORP.,
AS SERVICER,
and
BANKERS TRUST COMPANY,
AS TRUSTEE
================================================================================
2
TABLE OF CONTENTS
ARTICLE I
DESIGNATION
Section 1.01. Designation...................................................................................1
ARTICLE II
DEFINITIONS
Section 2.01. Definitions...................................................................................2
ARTICLE III
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 3.01. Revolving Period Daily Principal Allocations.................................................14
Section 3.02. Allocation of Collections of Principal Receivables...........................................14
Section 3.03. Allocation of Collections of Finance Charge Receivables......................................15
Section 3.04. Excess Spread................................................................................17
Section 3.05. Investor Charge-Offs.........................................................................18
Section 3.06. Reserve Account..............................................................................19
Section 3.07. Hedge Agreement..............................................................................20
Section 3.08. Principal Collection Account.................................................................20
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO INVESTOR CERTIFICATEHOLDERS
Section 4.01. Servicer Deposits............................................................................21
Section 4.02. Distributions................................................................................21
Section 4.03. Annual Certificateholders' Tax Statement.....................................................22
Section 4.04. Transferor's or Servicer's Failure to Make a Deposit or Payment..............................22
ARTICLE V
COVENANTS
Section 5.01. Covenants of the Servicer....................................................................23
i
3
ARTICLE VI
SERIES 2000-1 EARLY AMORTIZATION EVENTS
Section 6.01. Series Early Amortization Events.............................................................24
Section 6.02. Trustee's Monitoring Obligations.............................................................26
ARTICLE VII
MISCELLANEOUS
Section 7.01. Reassignment and Transfer Terms..............................................................27
Section 7.02. Assignment by Conduit Purchasers or Committed Purchasers.....................................27
Section 7.03. No Assignability by Transferor and Servicer; Transferor's Liability..........................27
Section 7.04. Ratification of Pooling and Servicing Agreement..............................................27
Section 7.05. Amendments...................................................................................27
Section 7.06. No Obligations under Swap Agreement..........................................................28
Section 7.07. Counterparts.................................................................................28
Section 7.08. Governing Law. Etc...........................................................................28
Section 7.09. No Petition..................................................................................29
EXHIBITS
--------
EXHIBIT A-1 Form of Class A Certificate
EXHIBIT A-2 Form of Subordinated Transferor Certificate
ii
4
This is the SERIES 2000-1 SUPPLEMENT, dated as of May 19, 2000
(this "SUPPLEMENT"), among THE EL-BEE RECEIVABLES CORPORATION, a Delaware
corporation, as Transferor (the "TRANSFEROR"), THE EL-BEE CHARGIT CORP., an Ohio
corporation, as Servicer (the "SERVICER"), and BANKERS TRUST COMPANY, a New York
banking corporation, as Trustee (the "TRUSTEE"), to the Pooling and Servicing
Agreement, dated as of December 30, 1997, among the Transferor, the Servicer and
the Trustee (as amended, supplemented or otherwise modified from time to time,
the "POOLING AND SERVICING AGREEMENT").
All capitalized terms not otherwise defined herein are used
herein as defined in the Pooling and Servicing Agreement.
Pursuant to Section 6.09 of the Pooling and Servicing
Agreement, the Transferor, the Servicer and the Trustee may at any time and from
time to time enter into a supplement to the Pooling and Servicing Agreement for
the purpose of authorizing the delivery of one or more Series of Certificates by
the Trustee to the Transferor for the execution and redelivery to the Trustee
for authentication.
Pursuant to this Supplement, the Transferor and the Trustee
shall create a new Series of Investor Certificates and shall specify the
Principal Terms thereof.
ARTICLE I
DESIGNATION
Section 1.01. DESIGNATION.
(a) There is hereby created a Series of Investor Certificates
to be issued in two classes pursuant to the Pooling and Servicing
Agreement and this Series Supplement and to be known together as the
"SERIES 2000-1 CERTIFICATES". The two classes shall be designated the
Class A Floating Rate Certificates, Series 2000-1 (the "CLASS A
CERTIFICATES") and the Subordinated Transferor Certificate, Series
2000-1 (the "SUBORDINATED TRANSFEROR CERTIFICATE"). The Class A
Certificates and the Subordinated Transferor Certificate shall be
substantially in the form of Exhibits A-1 and A-2, respectively.
(b) Series 2000-1 shall be included in Group One and shall be
a Principal Sharing Series. Series 2000-1 shall not be subordinated to
any other Series.
(c) The Class A Certificates and the Subordinated Transferor
Certificate shall be delivered in fully registered form as provided in
Section 6.02 of the Pooling and Servicing Agreement. The Transferor
shall execute and deliver the Series 2000-1 Certificates to the Trustee
for authentication in accordance with Section 6.01 of the Pooling and
Servicing Agreement. The Trustee shall deliver the Series 2000-1
Certificates when authenticated in accordance with Section 6.02 of the
Pooling and Servicing Agreement.
1
5
(d) The Subordinated Transferor Certificate shall be retained
by the Transferor.
(e) The Class A Certificates may be pledged as collateral for
the issuance other securities or commercial paper.
ARTICLE II
DEFINITIONS
Section 2.01. DEFINITIONS.
(a) In the event that any term or provision contained herein
shall conflict with or be inconsistent with any provision contained in
the Pooling and Servicing Agreement, the terms and provisions of this
Supplement shall govern with respect to this Series.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Section 2.01, and accounting terms partially defined in this Section
2.01 to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles or
regulatory accounting principles, as applicable. To the extent that the
definitions of accounting terms herein are inconsistent with the
meanings of such terms under generally accepted accounting principles
or regulatory accounting principles, the definitions contained herein
shall control.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Supplement shall refer to this
Supplement as a whole and not to any particular provision of this
Supplement; and the term "including" means "including without
limitation".
(d) Unless otherwise stated in this Supplement, 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".
(e) Whenever used in this Supplement, the following words and
phrases shall have the following meanings, and the definitions of such
terms are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as the feminine and neuter
genders of such terms:
"ADJUSTED EURODOLLAR RATE" shall have the meaning set forth in
the Certificate Purchase Agreement.
"ALTERNATE BASE RATE" shall have the meaning set forth in the
Certificate Purchase Agreement.
2
6
"AMORTIZATION DATE" means May 19, 2003.
"AMORTIZATION PERIOD" means the period commencing upon the
occurrence of the Amortization Date and ending upon the payment in full to the
Series 2000-1 Certificateholders of the Series Invested Amount, all accrued and
unpaid interest thereon and all other amounts owed to such Series 2000-1
Certificateholders under any Transaction Document.
"ASSIGNEE RATE" shall have the meaning set forth in the
Certificate Purchase Agreement.
"AVAILABLE PRINCIPAL COLLECTIONS" means, with respect to any
Distribution Date, the sum of (i) the portion of all Collections of Principal
Receivables allocated to Series 2000-1 pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement for the most recently ended Due Period, (ii) any
Series 2000-1 Shared Principal Collections for such Distribution Date and (iii)
any other amounts which, pursuant to Article III hereof, are to be treated as
"Available Principal Collections" for such Distribution Date.
"BREAKAGE COSTS" shall have the meaning set forth in the
Certificate Purchase Agreement.
"CAP" means an interest rate cap having terms acceptable to
the Managing Agents executed pursuant to the Hedge Agreement, or any Replacement
Hedge Agreement.
"CAP PAYMENT" means, with respect to any Distribution Date,
the payment made by the Hedge Provider to the Trust, on or prior to the Deposit
Date for such Distribution Date, pursuant to the Cap.
"CERTIFICATE PURCHASE AGREEMENT" means the Series 2000-1
Certificate Purchase Agreement dated as of May 19, 2000 among the Seller, the
Conduit Purchasers, the Committed Purchasers, the Managing Agents, the
Certificate Agent and the Trustee, as the same may be amended, modified or
supplemented from time to time.
"CERTIFICATE RATE" means, as applicable, the Class A
Certificate Rate or the Subordinated Transferor Certificate Rate.
"CHANGE OF CONTROL" shall mean, with respect to any Person,
any event or series of events by which:
(i) such Person merges or consolidates with or into
another Person or the merger of another Person with or into
such Person, or the sale of all or substantially all the
assets of such Person to another Person, and, in the case of
any such merger or consolidation, the securities of such
Person that are outstanding immediately prior to such
transaction and which represent 100% of the aggregate voting
power of such Person are changed into or exchanged for cash,
securities or property, unless pursuant to such transaction
such securities are changed into or exchanged for, in addition
to any other consideration, securities of
3
7
the surviving corporation that represent immediately after
such transaction, at least a majority of the aggregate voting
power of the surviving corporation;
(ii) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934) is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934) directly or
indirectly, of the securities representing more than 40% of
the total voting power of such Person, except that such person
shall be deemed to have a beneficial ownership of all shares
that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time;
(iii) individuals who, on the Closing Date,
constitute the board of directors of such Person (the
"INCUMBENT DIRECTORS") cease for any reason to constitute at
least a majority of the board of directors of such Person ,
provided that any person becoming a director subsequent to the
Closing Date whose election or nomination for election was
approved by a vote of at least two-thirds of the Incumbent
Directors then in office (either by a specific vote or by
approval of the proxy-statement of such Person in which such
individual is named as a nominee for director, without
objection to such nomination) shall be an Incumbent Director;
provided, however, no individual elected or nominated as a
director of such Person initially as a result of an actual or
threatened election contest with respect to directors or any
other actual or threatened solicitation of proxies or consents
by or on behalf of any person other than the board of
directors of such Person shall be deemed to be an Incumbent
Director.
"CLASS A AVAILABLE FUNDS" means, with respect to any
Distribution Date, an amount equal to the sum of (a) the product of (i) the
Class A Floating Allocation for the most recently ended Due Period and (ii) an
amount equal to (A) the aggregate amount of Collections of Finance Charge
Receivables allocated to Series 2000-1 pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement for the most recently ended Due Period PLUS (B)
any amounts allocable as Collections of Finance Charge Receivables pursuant to
Section 4.03(d) of the Pooling and Servicing Agreement LESS (C) the aggregate
amount of such Collections of Finance Charge Receivables allocated pursuant to
Section 3.03(a) for such Distribution Date and (b) an amount equal to the Hedge
Payment with respect to such Distribution Date.
"CLASS A CERTIFICATE RATE" shall have the meaning set forth in
the Certificate Purchase Agreement.
"CLASS A CERTIFICATEHOLDER" means any Person in whose name a
Class A Certificate is registered in the Certificate Register.
"CLASS A CERTIFICATES" shall have the meaning specified in
Section 1.01(a) hereof.
"CLASS A EXPECTED FINAL PAYMENT DATE" means the May, 2004
Distribution Date.
4
8
"CLASS A FLOATING ALLOCATION" means, with respect to any Due
Period, the percentage equivalent of a fraction, the numerator of which is the
Class A Invested Amount as of the close of business on the last day of such Due
Period and the denominator of which is equal to the Series Invested Amount as of
the close of business on such last day; PROVIDED, HOWEVER, that, with respect to
the initial Due Period, the Class A Floating Allocation shall mean the
percentage equivalent of a fraction, the numerator of which is the Class A
Initial Series Invested Amount and the denominator of which is the Initial
Series Invested Amount.
"CLASS A INITIAL SERIES INVESTED AMOUNT" means the aggregate
initial principal amount of the Class A Certificates, which is $102,500,000.
"CLASS A INVESTED AMOUNT" means, at any time, an amount equal
to (a) the Class A Initial Series Invested Amount, PLUS (b) the aggregate amount
of Increases after the Closing Date, MINUS (c) the aggregate amount of
Collections of Principal Receivables previously allocated under Section
3.02(b)(i), and distributed under Section 4.02(b) to Class A Certificateholders
MINUS (d) the excess, if any, of the aggregate amount of Class A Investor
Charge-Offs prior to such time over the aggregate cumulative amount allocated in
respect of Class A Investor Charge-Offs pursuant to Section 3.04(d) prior to
such time; PROVIDED, HOWEVER, that the Class A Invested Amount may not be
reduced below zero.
"CLASS A INVESTOR CHARGE-OFF" shall have the meaning specified
in Section 3.05(a).
"CLASS A INVESTOR LOSS AMOUNT" means, with respect to each
Distribution Date, an amount equal to the product of (a) the Investor Loss
Amount for the most recently ended Due Period and (b) the Class A Floating
Allocation applicable for such Due Period.
"CLASS A MONTHLY INTEREST" means, with respect to any
Distribution Date and the Interest Period ending on such Distribution Date, the
sum of the following amounts calculated for each Class A Certificate:
[CR X PA X IP] + [ DA + [(CR + 2.0%) X DA X IP]]
------------ --------------------
YR YR
wherein: CR = the weighted average Class A Certificate Rate applicable
to such Class A Certificate during such Interest Period.
PA = with respect to any Distribution Date, the average
aggregate principal amount of all Class A Certificates.
IP = the number of days in such Interest Period.
DA = with respect to the initial Distribution Date, zero or,
with respect to any other Distribution Date, the amount of
any portion of the Class A Monthly Interest for such Class
A Certificate with respect to each prior
5
9
Distribution Date which has not been distributed to the
holder of such Class A Certificate.
YR = 360, or, if the Class A Certificate Rate in effect on the
day immediately preceding such Distribution Date is based
on the Alternate Base Rate, 365.
"CLASS A MONTHLY SERVICING FEE" means, with respect to any
Distribution Date, the product of (i) the Investor Monthly Servicing Fee for
such Distribution Date and (ii) the Class A Floating Allocation with respect to
the most recently ended Due Period.
"CLASS A PURCHASERS" means, "Purchasers" under the Certificate
Purchase Agreement.
"CLASS A REQUIRED AMOUNT" means, with respect to any
Distribution Date, the amount, if any, by which (a) the sum of (i) the Class A
Monthly Interest for such Distribution Date, PLUS (ii) the Class A Monthly
Servicing Fee for such Distribution Date, PLUS (iii) the Class A Monthly
Servicing Fee, if any, due but not paid on any prior Distribution Date, PLUS
(iv) the Class A Investor Loss Amount, if any, for such Distribution Date PLUS
(v) the Series 2000-1 Monthly Trustee's Fee, exceeds (b) the aggregate amount of
the Class A Available Funds allocated to the Class A Certificateholders pursuant
to Section 3.03 in respect thereof on such Distribution Date.
"CLOSING DATE" means, with respect to Series 2000-1, May 19,
2000.
"COMMITTED PURCHASERS" shall have the meaning set forth in the
Certificate Purchase Agreement.
"CONDUIT PURCHASERS" shall have the meaning set forth in the
Certificate Purchase Agreement.
"CUMULATIVE PRINCIPAL SHORTFALL" means, as of any Distribution
Date during the Amortization Period or Early Amortization Period, the sum of the
Principal Shortfalls for each Series in Group One that is a Principal Sharing
Series.
"DCR" means Duff & ▇▇▇▇▇▇ Credit Rating Co.
"DEPOSIT DATE" means, with respect to any Distribution Date,
the Business Day immediately preceding such Distribution Date.
"DILUTED RECEIVABLE" means that portion (and only that
portion) of any Receivable which is reduced or cancelled as a result of (i) any
failure by any Originator to deliver any merchandise or provide any services or
otherwise to perform under the underlying Cardholder Agreement or invoice, (ii)
any change in the terms of, or cancellation of, a Cardholder Agreement or
invoice or any other adjustment which reduces the amount payable by the Obligor
on the related Receivable or Account or (iii) any set-off by an Obligor in
respect of
6
10
any claim by such Obligor as to amounts owed by it on the related Receivable or
Account; provided, that Diluted Receivables are calculated assuming that all
chargebacks are resolved in the Obligor's favor and do not include contractual
adjustments to the amount payable by an Obligor that are eliminated from the
Receivables balance sold to the Trust through a reduction in the Purchase Price
for the related Receivable.
"DILUTION RATIO" means, as of any date, the fraction (i) the
numerator of which is an amount equal to the Dilution Amount for the Due Period
most recently ended and (ii) the denominator of which is the aggregate
outstanding balance of all Principal Receivables in the Trust Assets on the last
day of the Due Period immediately preceding such most recently ended Due Period.
"DISTRIBUTION DATE" shall have the meaning specified in the
Pooling and Servicing Agreement, and the initial Distribution Date shall be June
20, 2000.
"EARLY AMORTIZATION PERIOD" means the period commencing at the
close of business on the Business Day immediately preceding the day on which a
Series Early Amortization Event with respect to Series 2000-1 occurs and ending
on the Series 2000-1 Termination Date.
"E-MAIL SERVICER REPORT is defined in Section 5.1(a).
"ENHANCEMENT PROVIDER" shall not be applicable to this Series
2000-1.
"EXCESS SPREAD" means with respect to any Distribution Date,
the sum of the amounts with respect to such Distribution Date, if any,
constituting Excess Spread pursuant to Sections 3.03(b)(iv) and 3.03(c)(ii).
"EXCESS SPREAD PERCENTAGE" means, as of any date of
determination, the Portfolio Yield on such date MINUS the sum of (i) the Class A
Certificate Rate in effect on such date and (ii) the Series Servicing Fee
Percentage.
"FINANCE CHARGE SHORTFALL" means, with respect to Series
2000-1, for any Distribution Date, the excess, if any, of the full amount
required to be allocated pursuant to Sections 3.03 and 3.04 on such Distribution
Date over the amount not allocated pursuant to such Sections.
"GROUP ONE" means Series 2000-1, and each other Series
specified in the related Supplement to be included in Group One.
"HEDGE AGREEMENT" means that certain ISDA Master Agreement
dated December 19, 1997 among the Parent and the Hedge Provider and all
schedules, confirmations and annexes thereto, as the same may be amended,
modified, supplemented from time to time.
"HEDGE PAYMENT" means, with respect to any Distribution Date,
the sum of (a) the payment made by the Hedge Provider to the Trust, if any, on
or prior to the Deposit Date,
7
11
pursuant to the Swap (so long as such amount is positive) and (b) the Cap
Payment, if any, for such Distribution Date.
"HEDGE PROVIDER" means Citibank, or any successor or assign
thereto appointed as provided in the Hedge Agreement, in its individual capacity
pursuant to the Hedge Agreement, or if any Replacement Hedge Agreement is
obtained therefor pursuant to Section 3.07, the Replacement Hedge Provider.
"INCREASE" means the amount of each increase in the Class A
Invested Amount pursuant to the terms of the Certificate Purchase Agreement.
"INITIAL SERIES INVESTED AMOUNT" the sum of the Class A
Initial Series Invested Amount and the Subordinated Transferor Initial Invested
Amount.
"INTEREST PERIOD" means (i) with respect to the first
Distribution Date, the period from the Closing Date to, but not including, such
Distribution Date and (ii) with respect to each Distribution Date thereafter, a
period from each Distribution Date to, but not including, the next succeeding
Distribution Date.
"INTEREST RATE PROTECTION AGREEMENT" means each of the Swap
Agreement and the Cap Agreement.
"INVESTOR CERTIFICATEHOLDER" means (a) with respect to the
Class A Certificates, any Class A Certificateholder, and (b) with respect to the
Subordinated Transferor Certificate, any Subordinated Transferor
Certificateholder.
"INVESTOR CERTIFICATES" means the Class A Certificates and the
Subordinated Transferor Certificate.
"INVESTOR LOSS AMOUNT" means, with respect to any Distribution
Date, the portion of the Loss Amounts allocated to Series 2000-1 pursuant to
Section 4.03(b) of the Pooling and Servicing Agreement for the related Due
Period.
"INVESTOR MONTHLY SERVICING FEE" means, with respect to any
Distribution Date, an amount equal to one-twelfth of the product of (i) the
Series Servicing Fee Percentage and (ii) the Series Invested Amount as of the
last day of the most recent Due Period preceding such Distribution Date;
provided, however, that with respect to the initial Distribution Date, the
Investor Monthly Servicing Fee shall be equal to $170,000.
"MANAGING AGENTS" shall have the meaning set forth in the
Certificate Purchase Agreement.
"MONTHLY PAYMENT RATE" means, as of any date, the fraction (i)
the numerator of which is an amount equal to the aggregate amount of Collections
(excluding all net interest and other investment earnings thereon) for the Due
Period most recently ended and (ii) the denominator of which is the aggregate
outstanding balance of all Principal Receivables in the
8
12
Trust Assets on the last day of the Due Period immediately preceding such most
recently ended Due Period.
"NET LOSS PERCENTAGE" means at any date, the amount equal to,
in percentage terms, the aggregate outstanding balance of the Principal
Receivables which have been written off, or consistent with the Cardholder
Guidelines should have been written off (net of Recoveries) during the Due
Period most recently ended DIVIDED BY an amount equal to the aggregate
outstanding balance of all Principal Receivables in the Trust Assets on the last
day of the Due Period immediately preceding such most recently ended Due Period.
"PORTFOLIO YIELD" means, with respect to any Due Period, the
annualized percentage equivalent of a fraction, the numerator of which is an
amount equal to the sum of (i) the product of the Floating Allocation Percentage
for such Due Period and the aggregate amount of Collections of Finance Charge
Receivables for such Due Period, (ii) any Series 2000-1 Shared Excess Finance
Charge Collections for the related Distribution Date and (iii) the aggregate
amount of interest or other proceeds earned on amounts on deposit in any Series
Account during such Due Period, such sum to be calculated on a cash basis after
subtracting the Investor Loss Amount for such Due Period, and the denominator of
which is the Series Invested Amount as of the last day of the preceding Due
Period (or with respect to the initial Due Period, the Initial Series Invested
Amount).
"PRINCIPAL COLLECTION ACCOUNT" shall have the meaning
specified in Section 3.09.
"PRINCIPAL SHORTFALL" means, on any Distribution Date during
the Amortization Period or the Early Amortization Period, the amount by which
the Series Invested Amount exceeds the Available Principal Collections for such
Distribution Date.
"PROGRAM AGENT" means Citicorp North America, Inc., in its
capacity as "Program Agent" under the Certificate Purchase Agreement.
"RATING AGENCY" means Moody's, Standard & Poor's and DCR.
"REALLOCATED SUBORDINATED TRANSFEROR PRINCIPAL COLLECTIONS"
means, with respect to any Distribution Date, the aggregate amount of Available
Principal Collections allocated in accordance with Section 3.02(a)(i) on such
Distribution Date in an amount not to exceed the lesser of (a) the product of
(i) the Subordinated Transferor Floating Allocation with respect to the most
recently ended Due Period, and (ii) the amount of Available Principal
Collections with respect to such Distribution Date and (b) the Subordinated
Transferor Invested Amount on such Distribution Date.
"REPLACEMENT HEDGE AGREEMENT" means any replacement hedge
agreement between the Parent and the Replacement Hedge Provider having
substantially similar terms and conditions as the Hedge Agreement it replaces.
"REPLACEMENT HEDGE PROVIDER" means the replacement hedge
provider named in the Replacement Hedge Agreement.
9
13
"RESERVE ACCOUNT" shall have the meaning specified in Section
3.06.
"RESERVE ACCOUNT REQUIRED BALANCE" means $700,000.
"REVOLVING PERIOD" means the period from and including the
Closing Date to, but not including, the earlier of (i) the day the Amortization
Period commences or (ii) the day any Early Amortization Period commences.
"SERIES DISCOUNT FACTOR" means, for this Series 2000-1, with
respect to any date of determination, an amount (expressed as a percentage)
determined in accordance with the following formula:
[[PY- (BR + 1% )] / TR] * FAP
wherein: BR = The sum (expressed as a percentage) of (a) the sum of (i)
a fraction, the numerator of which is the product of the
weighted average of the Class A Certificate Rates for the
most recently ended [Due][Interest] Period and the Class A
Invested Amount as of the last day of such [Due][Interest]
Period, and the denominator of which is the Series
Invested Amount as of such last day and (ii) a fraction,
the numerator of which is the product of the Subordinated
Transferor Certificate Rate for the most recently ended
Due Period and the Subordinated Transferor Invested Amount
as of the last day of such Due Period, and the denominator
of which is the Series Invested Amount as of such last day
and (b) the Series Servicing Fee Percentage per annum in
effect on such date.
PY = The Portfolio Yield for such Series for the most recently
ended Due Period.
TR = The annualized average (expressed as a percentage) of, for
each of the three Due Periods most recently ended on or
before such date, a fraction the numerator of which is the
aggregate principal amount (measured for each Receivable
at the time of acquisition) of all Receivables that were
acquired by the Trust during each such Due Period and the
denominator of which is the aggregate outstanding
principal balance of all Receivables as of the last day of
each such Due Period.
FAP = The Floating Allocation Percentage for such Series for the
most recently ended Due Period.
"SERIES INVESTED AMOUNT" means, on any date of determination
and with respect to Series 2000-1, an amount equal to the sum of (a) the Class A
Invested Amount and (b) the Subordinated Transferor Invested Amount, each as of
such date.
10
14
"SERIES 2000-1" means the Series of the ▇▇▇▇▇-▇▇▇▇▇▇▇ Master
Trust represented by the Series 2000-1 Certificates.
"SERIES 2000-1 CERTIFICATEHOLDER" means any Person in whose
name a Series 2000-1 Certificate is registered in the Certificate Register.
"SERIES 2000-1 CERTIFICATES" means the Class A Certificates
and the Subordinated Transferor Certificate.
"SERIES 2000-1 MAJORITY IN INTEREST" shall have the meaning
set forth in the Certificate Purchase Agreement.
"SERIES 2000-1 MONTHLY PROGRAM FEES" means, with respect to
any Distribution Date, an amount equal to the fees accrued and payable on such
Distribution Date pursuant Section 3.01 of the Certificate Purchase Agreement.
"SERIES 2000-1 MONTHLY TRUSTEE'S FEE" means, with respect to
any Distribution Date, the amount agreed upon from time to time by the Trustee,
the Servicer and the Managing Agents as the fee, PLUS expenses and indemnity
payments accrued and payable on such Distribution Date to the Trustee with
respect to the Agreement and this Supplement.
"SERIES 2000-1 SHARED EXCESS FINANCE CHARGE COLLECTIONS" means
the portion of Shared Excess Finance Charge Collections allocated to Series
2000-1 pursuant to Section 4.03(f) of the Pooling and Servicing Agreement.
"SERIES 2000-1 SHARED PRINCIPAL COLLECTIONS" means the portion
of Shared Principal Collections allocated to Series 2000-1 pursuant to Sections
4.03(d) and 4.03(e) of the Pooling and Servicing Agreement.
"SERIES 2000-1 TERMINATION DATE" means the earliest to occur
of (i) the Distribution Date on which all amounts payable in respect of the
Series 2000-1 Certificates have been paid in full, (ii) the May, 2006
Distribution Date or (iii) the date of termination of the Trust pursuant to
Section 12.01 of the Pooling and Servicing Agreement.
"SERIES SERVICING FEE PERCENTAGE" means 2.0%.
"SHARED EXCESS FINANCE CHARGE COLLECTIONS" means, with respect
to any Distribution Date, the amount specified in Section 3.04(o) as
constituting "Shared Excess Finance Charge Collections."
"SHARED PRINCIPAL COLLECTIONS" means, with respect to any
Distribution Date, the aggregate amounts allocated to the Investor Certificates
pursuant to Section 3.02(b)(iv) to be treated as "Shared Principal Collections."
"SUBORDINATED TRANSFEROR AVAILABLE FUNDS" means, with respect
to any Distribution Date, an amount equal to (a) the product of the Subordinated
Transferor Floating
11
15
Allocation for the most recently ended Due Period and (b) an amount equal to (A)
Collections of Finance Charge Receivables allocated to Series 2000-1 pursuant to
Section 4.03(b) of the Pooling and Servicing Agreement for the most recently
ended Due Period PLUS (B) any amounts allocable as Collections of Finance Charge
Receivables pursuant to Section 4.03(d) of the Pooling and Servicing Agreement
LESS (C) the amount of such Collections of Finance Charge Receivables allocated
pursuant to Section 3.03(a) hereof for such Distribution Date.
"SUBORDINATED TRANSFEROR CERTIFICATEHOLDER" means any person
in whose name a Subordinated Transferor Certificate is registered in the
Certificate Register.
"SUBORDINATED TRANSFEROR CERTIFICATE RATE" means a per annum
rate equal to the Assignee Rate PLUS 0.25%.
"SUBORDINATED TRANSFEROR CERTIFICATE" shall have the meaning
specified in Section 1.01(a) hereof.
"SUBORDINATED TRANSFEROR CHARGE-OFF" shall have the meaning
specified in Section 3.05(c) hereof.
"SUBORDINATED TRANSFEROR FLOATING ALLOCATION" means, with
respect to any Due Period, the percentage equivalent of a fraction, the
numerator of which is the Subordinated Transferor Invested Amount as of the
close of business on the last day of the most recently ended Due Period and the
denominator of which is equal to the Series Invested Amount as of the close of
business on such last day; provided, however, that, with respect to the first
Due Period, the Subordinated Transferor Floating Allocation shall mean the
percentage equivalent of a fraction, the numerator of which is the Subordinated
Transferor Initial Invested Amount and the denominator of which is the Initial
Series Invested Amount.
"SUBORDINATED TRANSFEROR INITIAL INVESTED AMOUNT" means the
aggregate initial principal amount of the Subordinated Transferor Invested
Amount, which is $16,686,047.
"SUBORDINATED TRANSFEROR INTEREST MONTHLY SERVICING FEE"
means, with respect to any Distribution Date, the product of (i) the Investor
Monthly Servicing Fee for such Distribution Date and (ii) the Subordinated
Transferor Floating Allocation for the most recently ended Due Period.
"SUBORDINATED TRANSFEROR INVESTED AMOUNT" means, at any time,
an amount equal to (a) the Subordinated Transferor Initial Invested Amount,
MINUS (b) the aggregate amount of Collections of Principal Receivables
previously allocated under Section 3.02(b)(iii), and distributed under Section
4.02(e) to the Subordinated Transferor Certificateholders, MINUS (c) the
aggregate amount of Subordinated Transferor Charge-Offs prior to such time,
MINUS (d) the aggregate amount of Reallocated Subordinated Transferor Principal
Collections prior to such time, MINUS (e) without duplication with the foregoing
clause (c), an amount equal to the amount by which the Subordinated Transferor
Invested Amount has been reduced prior to such time pursuant to Section 3.05,
PLUS (f) the aggregate amounts allocated pursuant to Section 3.04(m) with
respect to amounts deducted pursuant to the foregoing clauses (c), (d) and (e)
and
12
16
distributed in respect thereof prior to such time; PROVIDED, HOWEVER, that the
Subordinated Transferor Invested Amount may not be reduced below zero or
increased above the Subordinated Transferor Initial Invested Amount.
"SUBORDINATED TRANSFEROR LOSS AMOUNT" means, with respect to
any Distribution Date, an amount equal to the product of (a) the Investor Loss
Amount for the most recently ended Due Period and (b) the Subordinated
Transferor Floating Allocation applicable for such Due Period.
"SUBORDINATED TRANSFEROR MONTHLY INTEREST" means, with respect
to any Distribution Date, an amount equal to:
[CR X IA X IP] + [ DA + [(CR + 2.0%) X DA X IP]]
------------ --------------------
YR YR
wherein: CR = the Subordinated Transferor Certificate Rate in effect on
the day immediately preceding such Distribution Date.
IA = with respect to the initial Distribution Date, the
Subordinated Transferor Initial Invested Amount or, with
respect to any other Distribution Date the Subordinated
Transferor Invested Amount determined as of the day
immediately preceding such Distribution Date.
IP = the number of days in the period from and including the
immediately preceding Distribution Date to but excluding
the current Distribution Date.
DA = with respect to the initial Distribution Date, zero or,
with respect to any other Distribution Date, the amount of
any portion of the Subordinated Transferor Monthly
Interest with respect to each prior Distribution Date
which has not been distributed to the Subordinated
Transferor Certificateholders.
YR = 360, or, if the Subordinated Transferor Certificate Rate
in effect on the day immediately preceding such
Distribution Date is based on a rate which is in turn
based on the Alternate Base Rate, 365.
"SWAP" means a fixed/floating interest rate swap having terms
acceptable to the Managing Agents executed pursuant to the Hedge Agreement or
any Replacement Hedge Agreement.
Section 2.02. RATING AGENCY CONDITION. Notwithstanding
anything to the contrary in the Pooling and Servicing Agreement, unless there is
then outstanding one or more Series of Investor Certificates which, as of the
date of issuance of such Certificates, were rated in
13
17
the highest investment category by each Rating Agency, no action which would be
subject to the Rating Agency Condition or which would otherwise require Rating
Agency consent pursuant to the terms of the Pooling and Servicing Agreement or
this Supplement were one or more Series of Investor Certificates rated by any
Rating Agency then outstanding, shall be taken unless the Managing Agents shall
have first consented in writing to such action, which consent by the Managing
Agents shall be in lieu of a requirement to satisfy the Rating Agency Condition
or obtain Rating Agency consent.
ARTICLE III
RIGHTS OF CERTIFICATEHOLDERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 3.01. REVOLVING PERIOD DAILY PRINCIPAL ALLOCATIONS.
(a) On any Business Day, prior to the making of any
allocations, distributions or deposits pursuant to Sections 3.01(b) and
3.02 below, if any Swap Agreement or Cap Agreement shall cease to be in
full force and effect on or prior to such Business Day, the Program
Agent may instruct the Trustee in writing to, and the Trustee shall,
for the purpose of obtaining a Replacement Swap Agreement or
Replacement Cap Agreement, as the case may be, allocate and distribute
all Collections of Principal Receivables deposited in the Concentration
Account on such Business Day and any credit balance remaining in the
Principal Collection Account in accordance with such written
instructions, up to the amount required to obtain such Replacement Swap
Agreement or Replacement Cap Agreement.
(b) On each Business Day during the Revolving Period, the
Servicer shall instruct the Trustee by the Daily Report to, and the
Trustee shall, with respect to all Collections of Principal Receivables
deposited in the Concentration Account on such Business Day and the
credit balance remaining in the Principal Collection Account:
(i) allocate and distribute to the holder of the
Exchangeable Transferor Certificate, such Collections of
Principal Receivables and, to the extent such Collections of
Principal Receivables are insufficient, the credit balance in
the Principal Collection Account, up to an aggregate amount
equal to the aggregate outstanding balance of all Principal
Receivables Transferred to the Trust on the immediately
preceding Business Day; and
(ii) allocate to and deposit in the Principal
Collection Account any remaining balance of such Collections
of Principal Receivables.
Section 3.02. ALLOCATION OF COLLECTIONS OF PRINCIPAL
RECEIVABLES.
(a) On each Distribution Date during the Revolving Period,
after the allocations required to be made pursuant to Sections 3.03 and
3.04 for such Distribution
14
18
Date shall have been made, the Servicer shall instruct the Trustee by
the Monthly Servicer's Report to, and the Trustee shall, allocate the
Available Principal Collections for such Distribution Date in the
following priority:
(i) to the Managing Agents, for the benefit of the
Class A Purchasers, in the order of priority and up to the
amounts specified in Sections 3.03(b)(i) and (ii) below, but
in an aggregate amount not to exceed an amount equal to the
lesser of (x) the product of (1) the Subordinated Transferor
Floating Allocation for the most recently ended Due Period,
and (2) such Available Principal Collections and (y) the
Subordinated Transferor Invested Amount on such Distribution
Date;
(ii) any remaining balance shall be allocated to the
holder of the Exchangeable Transferor Certificate; provided,
however, that in no event shall the amount allocated to the
holder of the Exchangeable Transferor Certificate pursuant to
this Section 3.02(a)(ii) be greater than the Transferor
Interest on such Distribution Date.
(b) On each Distribution Date during the Amortization Period
or Early Amortization Period, the Servicer shall instruct the Trustee
by the Monthly Servicer's Report to, and the Trustee shall, allocate
the Available Principal Collections for such Distribution Date, PLUS an
amount equal to the credit balance in the Principal Collection Account,
PLUS an amount equal to the credit balance in the Reserve Account, in
the following priority:
(i) to the Managing Agents, for the benefit of the
Class A Purchasers, until the Class A Invested Amount shall be
reduced to zero;
(ii) any remaining balance, to the Subordinated
Transferor Certificateholders, until the Subordinated
Transferor Invested Amount shall be reduced to zero;
(iii) any remaining balance or, if less, an amount
equal to the product of (1) a fraction, the numerator of which
is equal to such Available Principal Collections and the
denominator of which is equal to the sum of the Available
Principal Collections for each Series (including this Series
2000-1) in Group One that is a Principal Sharing Series for
the most recently ended Due Period and (2) the Cumulative
Principal Shortfall for such Distribution Date, shall be
treated as "Shared Principal Collections" and allocated to
Series in Group One which are Principal Sharing Series other
than this Series 2000-1; and
(iv) any remaining balance, to the holder of the
Exchangeable Transferor Certificate.
Section 3.03. ALLOCATION OF COLLECTIONS OF FINANCE CHARGE
RECEIVABLES. On each Distribution Date, the Servicer shall instruct the Trustee
by the Monthly Servicer's Report to, and the Trustee shall allocate all
Collections of Finance Charge Receivables (including any
15
19
amounts allocable as Collections of Finance Charge Receivables pursuant to
Section 4.03(d) of the Pooling and Servicing Agreement) for the most recently
ended Due Period, any Hedge Payment for such Distribution Date and, where
specified below, the credit balance in the Reserve Account in the following
priority:
(a) an amount equal to all such Collections of Finance Charge
Receivables for the most recently ended Due Period PLUS, to the extent
such amount is insufficient to make the allocations provided for in
clauses (i) and (ii) of this Section 3.03(a), an amount equal to the
lesser of such insufficiency or the credit balance in the Reserve
Account, in the following priority:
(i) to the Trustee, up to an amount equal to the
Series 2000-1 Monthly Trustee's Fee for such Distribution
Date;
(ii) to the Servicer in respect of servicing fees, if
The El-Bee Chargit Corp. or an Affiliate of the Parent is not
the Servicer;
(iii) to the Hedge Provider, to the extent not paid
under the Hedge Agreement or a Replacement Hedge Agreement
(iv) any remaining balance to the Managing Agents, up
to an amount equal to the Series 2000-1 Monthly Program Fees
for such Distribution Date; and
(v) any remaining balance to be allocated as provided
in Sections 3.03(b) and 3.03(c) below,
(b) a portion of such Collections of Finance Charge
Receivables (including any amounts allocable as Collections of Finance
Charge Receivables pursuant to Section 4.03(d) of the Pooling and
Servicing Agreement) and of any Hedge Payment for such Distribution
Date equal to the Class A Available Funds for the most recently ended
Due Period, PLUS to the extent such amount is insufficient to make the
allocations provided for in clauses (i), (ii) and (iii) of this Section
3.03(b), an amount equal to the lesser of such insufficiency or the
credit balance remaining in the Reserve Account, in the following
priority:
(i) to the Managing Agents, for the benefit of the
Class A Purchasers, up to an amount equal to the Class A
Monthly Interest for such Distribution Date;
(ii) any remaining balance, up to an amount equal to
the Class A Investor Loss Amount, if any, as of such
Distribution Date, shall be allocated as "Available Principal
Collections" for such Distribution Date (to be allocated in
accordance with Section 3.02);
(iii) any remaining balance, up to an amount equal to
the Class A Monthly Servicing Fee for such Distribution Date
PLUS the amount of any Class A
16
20
Monthly Servicing Fee for each prior Distribution Date which
has not been distributed to the Servicer, to the Servicer; and
(iv) any remaining balance as "Excess Spread", to be
allocated as set forth in Section 3.04,
(c) a portion of such Collections of Finance Charge
Receivables (including any amounts allocable as Collections of Finance
Charge Receivables pursuant to Section 4.03(d) of the Pooling and
Servicing Agreement) equal to the Subordinated Transferor Available
Funds for the most recently ended Due Period, in the following
priority:
(i) to the Servicer, up to an amount equal to the
Subordinated Transferor Interest Monthly Servicing Fee for
such Distribution Date, PLUS the amount of any Subordinated
Transferor Interest Monthly Servicing Fee for each prior
Distribution Date which has not been distributed to the
Servicer; and
(ii) any remaining balance as "Excess Spread", to be
allocated as set forth in Section 3.04.
Section 3.04. EXCESS SPREAD. On each Distribution Date, the
Servicer shall instruct the Trustee by the Monthly Servicer's Report to allocate
Excess Spread and Series 2000-1 Shared Excess Finance Charge Collections, in
each case with respect to the most recently ended Due Period, in the following
priority:
(a) to the Trustee, up to an amount equal to any portion of
the Series 2000-1 Monthly Trustee's Fee for such Distribution Date
which shall not have been allocated thereto pursuant to Section
3.02(a)(i);
(b) any remaining balance to the Managing Agents, for the
benefit of the Class A Purchasers and the Managing Agents, up to an
amount equal to any portion of the Series 2000-1 Program Fees which
shall not have been allocated thereto pursuant to Section 3.02(a)(ii);
(c) any remaining balance to the Managing Agents, for the
benefit of the Class A Purchasers, up to an amount equal to the Class A
Required Amount, if any, with respect to such Distribution Date,
allocated in accordance with, and in the priority and up to the amounts
set forth in, Section 3.03(b);
(d) any remaining balance to the Managing Agents, for the
benefit of the Class A Purchasers, until the aggregate cumulative
amount allocated under this Section 3.04(d) equals the aggregate amount
of Class A Investor Charge-Offs, shall be allocated as "Available
Principal Collections" for such Distribution Date (to be allocated
accordingly);
17
21
(e) any remaining balance to the Managing Agents, for the
benefit of the Class A Purchasers, up to an amount equal to the
Breakage Costs, if any, for the most recently ended Due Period;
(f) any remaining balance shall be allocated to and deposited
in the Reserve Account, until the credit balance on deposit in the
Reserve Account is equal to at least the Reserve Account Required
Balance;
(g) any remaining balance to the Servicer, up to an amount
equal to the Subordinated Transferor Monthly Servicing Fee for such
Distribution Date;
(h) any remaining balance to the Subordinated Transferor
Certificateholders, up to an amount equal to the Subordinated
Transferor Monthly Interest for such Distribution Date PLUS the amount
of any Subordinated Transferor Monthly Interest with respect to each
prior Distribution Date which has not been distributed to the
Subordinated Transferor Certificateholders;
(i) any remaining balance, up to an amount equal to the
Subordinated Transferor Loss Amount, if any, for such Distribution
Date, shall be allocated as "Available Principal Collections" for such
Distribution Date (to be allocated accordingly);
(j) any remaining balance, up to an amount equal to the
aggregate amount by which the Subordinated Transferor Invested Amount
has been reduced below the Subordinated Transferor Initial Invested
Amount, except for reductions pursuant to Section 3.02(b)(ii), shall be
allocated as "Available Principal Collections" for such Distribution
Date (to be allocated accordingly);
(k) any remaining balance will constitute "Shared Excess
Finance Charge Collections" for such Distribution Date and will be
available for allocation to other Series in Group One or to the holder
of the Exchangeable Transferor Certificate as described in Section
4.03(f) of the Pooling and Servicing Agreement.
Section 3.05. INVESTOR CHARGE-OFFS.
(a) On or before each Distribution Date, the Servicer shall
calculate the Class A Investor Loss Amount for such Distribution Date.
If, on any Distribution Date, such Class A Investor Loss Amount exceeds
the sum of the amounts allocated to the Class A Certificateholders with
respect thereto pursuant to Sections 3.03(b) and 3.04 with respect to
such Distribution Date, the Subordinated Transferor Invested Amount
(after giving effect to reductions thereof for any Reallocated
Subordinated Transferor Principal Collections on such Distribution
Date) will be reduced by the amount of such excess. In the event that
such reduction would cause the Subordinated Transferor Invested Amount
to be a negative number, the Subordinated Transferor Invested Amount
will be reduced to zero, and the Class A Invested Amount will be
reduced by the amount by which the Subordinated Transferor Invested
Amount would have been reduced below zero, but not
18
22
by more than the Class A Investor Loss Amount for such Distribution
Date (such reduction being a "CLASS A INVESTOR CHARGE-OFF").
(b) On or before each Distribution Date, the Servicer shall
calculate the Subordinated Transferor Loss Amount for such Distribution
Date. If on any Distribution Date, such Subordinated Transferor Loss
Amount exceeds the amount allocated to the Subordinated Transferor
Certificateholders with respect thereto pursuant to Section 3.04 with
respect to such Distribution Date, the Subordinated Transferor Invested
Amount (after giving effect to any reduction thereof for any
Reallocated Subordinated Transferor Principal Collection and any
adjustments thereto pursuant to Section 3.05(a) above) will be reduced
by the amount of such excess (such reduction being a "SUBORDINATED
TRANSFEROR CHARGE-OFF").
Section 3.06. RESERVE ACCOUNT.
(a) The Servicer, for the benefit of the Beneficiaries, shall
establish and maintain in the United States, in the name of the
Trustee, on behalf of the Trust, a segregated trust account with an
institution which is and continues to be a Qualified Depository
Institution (which shall initially be the Trustee), bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Beneficiaries (the "RESERVE ACCOUNT"). On
the Closing Date, the Transferor shall deposit to the Reserve Account
immediately available funds in an amount equal to the Reserve Account
Required Balance. The Trustee, for the benefit of the Beneficiaries,
shall possess all right, title and interest in all funds on deposit
from time to time in the Reserve Account and in all proceeds thereof.
Without limiting the rights of the Servicer set forth in Section
3.06(b) below, the Reserve Account shall be under the sole dominion and
control of the Trustee for the benefit of the Beneficiaries. Except as
expressly provided in this Agreement, the Servicer agrees that it shall
have no right to deduct from any funds held in the Reserve Account for
any amount owed to it by the Trustee, the Trust, the Transferor, any
Originator or any Certificateholder. If at any time the institution
holding the Reserve Account ceases to be a Qualified Depository
Institution the Transferor shall notify the Trustee, and the Trustee,
upon notice by the Servicer (or the Servicer on its behalf) shall
promptly establish a new Reserve Account with a Qualified Depository
Institution meeting the conditions specified above, and shall transfer
any cash or any investments to such new Reserve Account and, from the
date such new Reserve Account is established, it shall be the "Reserve
Account." The Trustee, at the written direction of the Servicer, shall
make deposits to and withdrawals from the Reserve Account from time to
time, at such time and for distributions pursuant to Section 3.04 of
amounts allocated pursuant to Section 3.03 hereof.
(b) Funds on deposit in the Reserve Account shall be invested
at the written direction of the Servicer by the Trustee in Permitted
Investments selected by the Servicer. All such Permitted Investments
shall be held by the Trustee for the benefit of the Beneficiaries. The
Trustee shall maintain for the benefit of the Beneficiaries possession
of the negotiable instruments or securities, if any, evidencing such
Permitted Investments.
19
23
Funds on deposit in the Reserve Account on any Distribution Date, after
giving effect to any withdrawals from the Reserve Account on such
Distribution Date, shall be invested in such investments that will
mature so that such funds will be available for withdrawal on the
following Distribution Date. No Permitted Investment shall be
liquidated prior to its maturity.
Section 3.07. HEDGE AGREEMENT.
(a) The Servicer hereby represents and warrants that the
Parent has duly executed the Hedge Agreement for the benefit of the
Class A Certificateholders providing for one or more Swaps and Caps
having an aggregate notional amount of at least $150,000,000.
(b) Upon the effectiveness of any Replacement Hedge Agreement
and one or more Swaps and Caps thereunder having terms acceptable to
the Managing Agents, the Swaps and/or Caps being replaced shall
terminate and the Hedge Provider shall be released of all future
obligations thereunder, provided, that such Hedge Provider shall not be
released from any obligations which have previously accrued thereunder
and shall continue to be obligated to perform such obligations.
(c) The Servicer covenants and agrees to replace (i) any Hedge
Provider who shall have failed to make any Hedge Payment within five
calendar days of when such payment is due with a Replacement Hedge
Provider, the short term debt obligations of which are rated at least
"A-1 +" by Standard & Poor's and "P-1" by Moody's, within 30 calendar
days of when such payment, as the case may be, is due.
Section 3.08. PRINCIPAL COLLECTION ACCOUNT.
(a) The Servicer, for the benefit of the Beneficiaries, shall
establish and maintain in the United States, in the name of the
Trustee, on behalf of the Trust, a segregated trust account with an
institution which is and continues to be a Qualified Depository
Institution (which shall initially be the Trustee), bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Beneficiaries (the "PRINCIPAL COLLECTION
ACCOUNT"). The Trustee, for the benefit of the Beneficiaries, shall
possess all right, title and interest in all funds on deposit from time
to time in the Principal Collection Account and in all proceeds
thereof. Without limiting the rights of the Servicer set forth in
Section 3.08(b) below, the Principal Collection Account shall be under
the sole dominion and control of the Trustee for the benefit of the
Beneficiaries. Except as expressly provided in this Agreement, the
Servicer agrees that it shall have no right to deduct from any funds
held in the Principal Collection Account for any amount owed to it by
the Trustee, the Trust, the Transferor, any Originator or any
Certificateholder. If at any time the institution holding the Principal
Collection Account ceases to be a Qualified Depository Institution, the
Transferor shall notify the Trustee, and the Trustee, upon notice by
the Servicer (or the Servicer on its behalf) shall promptly establish a
new Principal Collection Account with a Qualified Depository
Institution
20
24
meeting the conditions specified above, and shall transfer any cash or
any investments to such new Principal Collection Account and, from the
date such new Principal Collection Account is established, it shall be
the "Principal Collection Account." The Trustee, at the written
direction of the Servicer, shall make deposits to and withdrawals from
the Principal Collection Account from time to time, at such time and
for distributions pursuant to Section 3.01 and for distributions of
amounts allocated pursuant to Section 3.02(b).
(b) Funds on deposit in the Principal Collection Account shall
be invested at the written direction of the Servicer by the Trustee in
Permitted Investments selected by the Servicer. All such Permitted
Investments shall be held by the Trustee for the benefit of the
Beneficiaries. The Trustee shall maintain for the benefit of the
Beneficiaries possession of the negotiable instruments or securities,
if any, evidencing such Permitted Investments. Funds on deposit in the
Principal Collection Account on any Distribution Date, after giving
effect to any withdrawals from the Principal Collection Account on such
Distribution Date, shall be invested in such investments that will
mature so that such funds will be available for withdrawal on the
following Distribution Date. No Permitted Investment shall be
liquidated prior to its maturity.
ARTICLE IV
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 4.01. SERVICER DEPOSITS. On or before each Deposit
Date in each Due Period, the Servicer shall deposit or cause to be deposited in
the Concentration Account funds in an amount equal to the lesser of (x) the
aggregate Finance Charge Shortfall for such Due Period and (y) the Available
Principal Collections for such Due Period, it being understood that any
underestimates or overestimates by the Servicer in making such deposit shall be
promptly corrected.
Section 4.02. DISTRIBUTIONS.
(a) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the
Trustee pursuant to Section 3.04(b) of the Pooling and Servicing
Agreement) to itself (other than as provided in Section 12.03 of the
Pooling and Servicing Agreement respecting a final distribution) from
the Concentration Account, all amounts that have been allocated to the
Trustee pursuant to Article III by wire transfer or other appropriate
means.
(b) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the
Trustee pursuant to Section 3.04(b) of the Pooling and Servicing
Agreement) to the Managing Agents, for the benefit of the Class A
Purchasers, the Managing Agents and the Program Agent (other than as
provided in
21
25
Section 12.03 of the Pooling and Servicing Agreement respecting a final
distribution) from the Concentration Account, all amounts that have
been allocated to the Managing Agents, for the benefit of the Class A
Purchasers, the Managing Agents and the Program Agent, pursuant to
Article III by wire transfer to the Managing Agents' Account (or such
other account as may be specified in writing by the Managing Agents to
the Trustee).
(c) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the
Trustee pursuant to Section 3.04(b) of the Pooling and Servicing
Agreement) to each Subordinated Transferor Certificateholder of record
on the immediately preceding Record Date (other than as provided in
Section 12.03 of the Pooling and Servicing Agreement respecting a final
distribution) such Certificateholder's pro rata share (based on the
aggregate Undivided Trust Interests represented by the Subordinated
Transferor Certificate held by such Certificateholder) from the
Concentration Account, all amounts that have been allocated to the
Subordinated Transferor Certificateholders pursuant to Article III by
wire transfer to each Subordinated Transferor Certificateholder, to an
account specified by such Certificateholder to the Trustee in writing.
(d) On each Distribution Date, the Trustee shall distribute
(in accordance with the certificate delivered by the Servicer to the
Trustee pursuant to Section 3.04(b) of the Pooling and Servicing
Agreement) to the Servicer (if The El-Bee Chargit Corp. or an Affiliate
of the Parent is not the Servicer), the Hedge Provider or any
Replacement Hedge Provider, all amounts that have been allocated to the
Servicer (if The El-Bee Chargit Corp. or an Affiliate of the Parent is
not the Servicer), the Hedge Provider or any Replacement Hedge
Provider, pursuant to Article III by wire transfer to the Managing
Agents' Account (or such other account as may be specified in writing
by the ProgramAgent to the Trustee)
Section 4.03. ANNUAL CERTIFICATEHOLDERS' TAX STATEMENT. On or
before January 31 of each calendar year, beginning with January 31, 2001, the
Trustee shall distribute to each Person who at any time during the preceding
calendar year was a Series 2000-1 Certificateholder, a statement prepared by the
Servicer containing the information required to be contained in the Monthly
Servicer's Report, aggregated for such calendar year or the applicable portion
thereof during which such Person was a Series 2000-1 Certificateholder, together
with such other customary information (consistent with the treatment of the
Class A Certificates as debt) as the Servicer deems necessary or desirable to
enable the Series 2000-1 Certificateholders to prepare their tax returns. The
Servicer will provide such information to the Trustee as soon as possible after
January 1 of each calendar year. Such obligations of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time in effect.
Section 4.04. TRANSFEROR'S OR SERVICER'S FAILURE TO MAKE A
DEPOSIT OR PAYMENT. If the Servicer or the Transferor fails to make, or give
instructions to make, any payment or deposit required to be made or given by the
Servicer or Transferor, respectively, at the time specified in the Pooling and
Servicing Agreement (including applicable grace periods), the
22
26
Trustee shall make such payment or deposit from the applicable account without
instruction from the Servicer or Transferor. The Trustee shall be required to
make any such payment, deposit or withdrawal hereunder only to the extent that
the Trustee has sufficient information to allow it to determine the amount
thereof; provided, however, that the Trustee shall in all cases be deemed to
have sufficient information to determine the amount of interest payable to the
Investor Certificateholders on each Distribution Date. The Servicer shall, upon
request of the Trustee, promptly provide the Trustee with all information
necessary to allow the Trustee to make such payment, deposit or withdrawal. Such
funds or the proceeds of such withdrawal shall be applied by the Trustee in the
manner in which such payment or deposit should have been made by the Transferor
or the Servicer, as the case may be.
ARTICLE V
COVENANTS
Section 5.01. COVENANTS OF THE SERVICER. The Servicer hereby
covenants that:
(a) The Servicer will furnish to each Managing Agent, promptly
after delivery to the Trustee, all notices, reports and other
information given to the Trustee under the Pooling and Servicing
Agreement other than the Daily Reports required thereunder. The
Servicer further agrees that, notwithstanding any contrary provision
contained in the Pooling and Servicing Agreement, (i) it will submit
each Monthly Servicer's Report by electronic mail (each an "E-MAIL
SERVICER REPORT"), (ii) it will make arrangements with VeriSign, Inc.
(or another authenticating organization acceptable to the Program
Agent) to enable the Servicer to generate electronic signatures to be
used on such E-Mail Servicer Reports, (iii) it will format each E-Mail
Servicer Report in accordance with the directions of the Program Agent
and each of the Managing Agents, (iv) it will send each E-Mail Servicer
Report to the electronic mail address designated by the Program Agent
and the Managing Agents from time to time, (v) it authorizes the
Program Agent and each of the Managing Agents to rely on such E-Mail
Servicer Report for all purposes related to this Supplement to the same
extent as if the contents thereof had been otherwise delivered to the
Program Agent and each of the Managing Agents and (vi) it acknowledges
that the Program Agent or any of the Managing Agents may at any time
require it to manually submit a written Monthly Servicer's Report
instead of such E-Mail Servicer Report.
(b) At any time and from time to time during the Servicer's
regular business hours, on reasonable prior notice and for a purpose
reasonably related to the Pooling and Servicing Agreement, the Servicer
shall, in response to any reasonable request of the Trustee or any
Managing Agent, permit the Trustee or such Managing Agent or their
agents or representatives (which may be an independent accounting
firm), (i) to examine and make copies of and abstracts from all books,
records and documents (including, without limitation, computer tapes,
microfiche and disks) in the possession or under the control of the
Servicer relating to the Trust Assets, the Receivables and the Accounts
and
23
27
(ii) to visit the offices and properties of the Servicer for the
purpose of examining such materials and to discuss matters relating to
the Trust Assets, the Receivables and the Accounts or the Servicer's
performance under any Transaction Document with any of the officers or
employees of the Servicer having knowledge thereof. The Parent hereby
agrees to pay all reasonable expenses incurred by the Trustee and each
Managing Agent in exercising its rights under this Section 5.01. The
Servicer agrees that each Managing Agent will have the right to request
reasonable changes in the annual servicing report furnished by the
independent public accountants pursuant to Section 3.06 of the Pooling
and Servicing Agreement which are reasonably related to the Trust
Assets and the matters contemplated by the Transaction Documents, and
the Servicer agrees to use good faith reasonable efforts to obtain the
independent public accountants' agreement to such changes.
ARTICLE VI
SERIES 2000-1 EARLY AMORTIZATION EVENTS
Section 6.01. SERIES EARLY AMORTIZATION EVENTS. If an Early
Amortization Event or any one of the following events shall occur (each, a
"SERIES EARLY AMORTIZATION EVENT"):
(a) any Purchase Agreement shall for any reason cease to be in
full force and effect or an Early Termination (as defined therein)
shall occur; or
(b) (i) any purchase of any Receivables or other Trust Assets
by the Transferor under any Purchase Agreement shall cease to create a
valid sale, transfer and assignment to the Transferor of all right,
title and interest of the Originator in and to such Trust Assets and
the proceeds thereof, or (ii) any Transfer of any Trust Asset on any
date shall for any reason cease to create a valid and perfected first
priority sale, Transfer and assignment to the Trust of all right, title
and interest of the Transferor in and to such Trust Assets and the
proceeds thereof or, if such Transfer does not constitute such a sale,
Transfer and assignment, cease to create a valid and perfected first
priority security interest in such Trust Assets and the proceeds
thereof, or (iii) the Investor Certificates delivered hereunder shall
for any reason (other than due to the acts or omissions of the Investor
Certificateholders) cease to evidence the transfer to the Investor
Certificateholders of, or the Investor Certificateholders shall
otherwise cease to have, a beneficial interest in a trust owning, or
the Trustee on behalf of the Trust having a perfected first priority
security interest in, the Trust Assets now existing and hereafter
arising and the proceeds thereof to the extent of their respective
Undivided Trust Interests; or
(c) a Servicer Default shall have occurred and be continuing;
or
(d) the Servicer shall have resigned and shall not have been
replaced, in each case in accordance with the terms of the Pooling and
Servicing Agreement; or
24
28
(e) the Parent shall fail to observe or perform any covenant
or agreement (within any applicable cure period) applicable to it
contained in the Parent Undertaking Agreement, or the Parent
Undertaking Agreement shall cease to be in effect or the Parent shall
so assert in writing; or
(f) any material adverse change shall occur in the
collectibility of the Receivables taken as a whole (other than as a
result of the default of one or more Obligors on the payment thereof)
or in the financial condition of the Transferor, the Parent, the
Servicer or any Originator, or in the ability of any of them or any
Originator to perform its obligations under any Transaction Document;
or
(g) any Transaction Document shall cease to be in full force
and effect; or
(h) (i) any Plan Event shall have occurred, (ii) the
Transferor or any ERISA Affiliate shall have withdrawn from a
Multiemployer Plan, or (iii) any Multiemployer Plan shall have been
terminated or reorganized or become insolvent, and as a result of one
or more such events the Transferor or any ERISA Affiliate has incurred
or is reasonably expected to incur liability in excess of $500,000; or
(i) with respect to any Originator and the related Purchase
Agreement, (i) any Plan Event (as defined in such Purchase Agreement)
shall have occurred, (ii) such Originator or any ERISA Affiliate (as
defined in such Purchase Agreement) shall have withdrawn from a
Multiemployer Plan (as defined in such Purchase Agreement), or (iii)
any such Multiemployer Plan shall have been terminated or reorganized
or become insolvent, and as a result of one or more such events such
Originator or any such ERISA Affiliate has incurred or is reasonably
expected to incur liability in excess of $500,000; or
(j) the Parent shall cease to be the direct or indirect
beneficial owner of at least 100% of the outstanding Voting Stock of
the Transferor or the Servicer, or there shall occur a Change of
Control with respect to the Parent; or
(k) the rating of the senior long-term debt obligations of the
Parent by Moody's or Standard & Poor's shall fall below "B2" or "B",
respectively or, if no such public ratings are available, in the sole
judgment of any Managing Agent in accordance with its customary
practices, the deemed equivalent of such ratings; or
(l) the Excess Spread Percentage for any three consecutive Due
Periods is reduced to a rate of less than 1%; or
(m) the aggregate principal amount of the Class A Certificates
shall not be paid in full on the Class A Expected Final Payment Date;
or
(n) the failure on the part of a Hedge Provider to make a
Hedge Payment, within five calendar days of the date on which such
Hedge Payment is due; or
25
29
(o) the failure to maintain in full force and effect at all
times Swaps and Caps having a combined aggregate notional amount of at
least the outstanding Class A Invested Amount, with a Hedge Provider,
the short term debt obligations of each of which are rated at least
"A-1+" by Standard & Poor's and "P-1" by Moody's, provided that if, on
any date, any such ratings fall below "A-1+" or "P-1," as the case may
be, such Hedge Agreement shall be replaced with a Replacement Hedge
Agreement with a Replacement Hedge Provider, the short term debt
obligations of which are rated at least "A-1+" by Standard & Poor's and
"P-1" by Moody's, within 30 calendar days of such date; or
(p) the Subordinated Transferor Invested Amount is less than
14% of the Series Invested Amount; or
(q) the Net Loss Percentage for any three consecutive Due
Periods exceeds 8%;
(r) the Dilution Ratio for any three consecutive Due Periods
exceeds 6%;
(s) the Monthly Payment Rate for any three consecutive Due
Periods is less than 12%; or
(t) the Transferor Percentage shall at any time be less than
5%, and such deficiency shall remain uncured for more than one (1)
Business Day
then, if a Trust Early Amortization Event pursuant to Section 9.01(d) or (f) of
the Pooling and Servicing Agreement shall have occurred, a "Series Early
Amortization Event" shall occur without any notice, demand, protest or other
requirement of any kind immediately upon the occurrence of such event, and, if
any of the other events set forth in any of the paragraphs above shall have
occurred, either the Trustee or the Program Agent (unless otherwise directed by
a Majority in Interest of Series 2000-1 Certificateholders) or a Majority in
Interest of Series 2000-1 Certificateholders, by notice then given in writing to
the Transferor and the Servicer (and to the Trustee if given by such Majority in
Interest), may declare (provided that such Series Early Amortization Event shall
not have been remedied) that a "Series Early Amortization Event" has occurred as
of the date of such notice.
Section 6.02. TRUSTEE'S MONITORING OBLIGATIONS. The Trustee
shall examine each Monthly Servicer's Report delivered thereunder for positive
indications that an Early Amortization Event may have occurred pursuant to
clause (i) of Section 9.01 of the Pooling and Servicing Agreement or clauses
(l), (m), (p), (q), (r), (s) or (t) of Section 6.01 hereof and shall notify the
Program Agent if such an Early Amortization Event is indicated.
26
30
ARTICLE VII
MISCELLANEOUS
Section 7.01. REASSIGNMENT AND TRANSFER TERMS. The Investor
Certificates shall be subject to retransfer to the Transferor at its option, in
accordance with the terms specified in Section 12.02(a) of the Pooling and
Servicing Agreement, on any Distribution Date on or after the Distribution Date
on which the Series Invested Amount is less than or equal to 15% of the Initial
Series Invested Amount. The deposit required in connection with any such
repurchase shall be equal to the sum of (x) the Series Invested Amount PLUS (y)
all accrued and unpaid interest on the Investor Certificates PLUS (z) all
accrued and unpaid amounts owing in respect of the fees set forth in the Fee
Letter and all other accrued costs and expenses owing to any of the
Beneficiaries under any of the Transaction Documents, in each case through the
day preceding the Distribution Date on which the repurchase occurs.
Section 7.02. ASSIGNMENT BY CONDUIT PURCHASERS OR COMMITTED
PURCHASERS. The Transferor and the Servicer agree to execute or obtain such
other documentation as may be reasonably requested by the Conduit Purchasers or
the Committed Purchasers in order to effectuate any assignment under Section
6.01 of the Certificate Purchase Agreement.
Section 7.03. NO ASSIGNABILITY BY TRANSFEROR AND SERVICER;
TRANSFEROR'S LIABILITY. Neither the Servicer nor the Transferor may assign any
of its rights and obligations hereunder or any interest herein (including any
Subordinated Transferor Certificate) without the prior written consent of the
Managing Agents. Any such assignment shall be subject to the limitation on the
number of beneficial owners of the Trust set forth in Section 7.06.
Section 7.04. RATIFICATION OF POOLING AND SERVICING AGREEMENT.
As supplemented by this Supplement, the Pooling and Servicing Agreement is in
all respects ratified and confirmed and the Pooling and Servicing Agreement as
so supplemented by this Supplement shall be read, taken and construed as one and
the same instrument.
Section 7.05. AMENDMENTS. All amendments to this Series 2000-1
Supplement shall be made in accordance with the provisions of the Pooling and
Servicing Agreement. In addition, no amendments may be made to this Series
2000-1 Supplement the effect of which would be to (i) change the Class A Monthly
Interest, Subordinated Transferor Monthly Interest, Excess Spread Percentage,
Net Loss Percentage, Dilution Ratio, Revolving Period, the Series 2000-1 Monthly
Trustee's Fee, the Series 2000-1 Monthly Program Fees, Reserve Account Required
Balance or Series Early Amortization Events, (ii) reduce in any manner the
amount of, or delay the timing of, distributions to be made to any Series 2000-1
Certificateholder or allocations or deposits of amounts to be so distributed,
(iii) cause any adverse tax effect (taking into account any offsetting non-tax
benefit therefrom) for any Series 2000-1 Certificateholder or (iv) adversely
affect in any material respect the interests of any Series 2000-1
Certificateholder, in each case unless a Series 2000-1 Majority in Interest and,
in the case of clause (iii), each affected Series 2000-1 Certificateholder, has
consented in writing.
27
31
Section 7.06. NO OBLIGATIONS UNDER SWAP AGREEMENT. The parties
hereto hereby agree that no Beneficiary will have any obligations, duties or
other liabilities under or in connection with the Hedge Agreement.
Section 7.07. COUNTERPARTS. This Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Supplement by telecopier shall be effective as delivery of a manually executed
counterpart of this Supplement.
Section 7.08. GOVERNING LAW. ETC.
(a) GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) JURISDICTION.
(i) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive general 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
Supplement 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 Supplement shall affect any right that any
party may otherwise have to bring any action or proceeding
relating to this Supplement or any of the other Transaction
Documents in the courts of any jurisdiction.
(ii) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Supplement 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.
(c) CONSENT TO SERVICE OF PROCESS. Each party to this
Supplement irrevocably consents to service of process by personal
delivery, certified mail, postage prepaid or
28
32
overnight courier. Nothing in this Supplement will affect the right of
any party to this Supplement to serve process in any other manner
permitted by law.
(d) WAIVER OF JURY TRIAL. Each party to this Supplement waives
any right to a trial by jury in any action or proceeding to enforce or
defend any rights under or relating to this Supplement, 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 parties to the Certificate Purchase
Agreement or any other relationship existing in connection with this
Supplement or any other Transaction Document, and agrees that any such
action or proceeding shall be tried before a court and not before a
jury.
Section 7.09. NO PETITION.
(a) The Transferor, the Servicer and the Trustee, by entering
into this Supplement and each Series 2000-1 Certificateholder, by
accepting a Series 2000-1 Certificate, hereby covenant and agree that
they will not at any time institute against the Trust, or join in any
institution against the Trust of, any bankruptcy proceedings under any
United States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Investor Certificates, this
Supplement or any other Transaction Document.
(b) The Servicer and the Trustee, by entering into this
Supplement and each Series 2000-1 Certificateholder, by accepting a
Series 2000-1 Certificate, hereby covenant and agree that they will not
at any time institute against the Transferor, or join in any
institution against the Transferor of, any bankruptcy proceedings under
any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Investor Certificates,
this Supplement or any other Transaction Document.
(c) The Transferor, the Servicer and the Trustee, by entering
into this Supplement and each Series 2000-1 Certificateholder, by
accepting a Series 2000-1 Certificate, hereby covenant and agree that
they will not at any time institute against a Certificateholder that is
a Conduit Purchaser (including any Conduit Purchaser in its capacity as
a Committed Purchaser), or join in any institution against any
Certificateholder that is a Conduit Purchaser (including any Conduit
Purchaser in its capacity as a Committed Purchaser) of, any bankruptcy
proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Investor
Certificates, this Supplement or any other Transaction Document.
29
33
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee have
caused this Series 2000-1 Supplement to be duly executed by their respective
officers as of the day and year first above written.
THE EL-BEE RECEIVABLES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
THE EL-BEE CHARGIT CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Treasurer and Secretary
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
30
34
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
----------- --, ----
REGISTERED Variable Principal Amount*
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
Certificate No. _____
SERIES 2000-1
CLASS A FLOATING RATE CERTIFICATE
THIS CERTIFICATE REPRESENTS AN
UNDIVIDED INTEREST IN CERTAIN ASSETS OF THE
▇▇▇▇▇-▇▇▇▇▇▇▇ MASTER TRUST
the corpus of which consists primarily of certain receivables generated from
time to time by The ▇▇▇▇▇-▇▇▇▇▇▇▇ Stores Corp. (the "COMPANY") which are then
purchased by The El-Bee Chargit Corp. ("CHARGIT") (together, the "ORIGINATORS")
and then purchased by The El-Bee Receivables Corporation (the "TRANSFEROR"),
from the Originators, which in turn transfers and assigns such receivables to
The ▇▇▇▇▇-▇▇▇▇▇▇▇ Master Trust pursuant to the Pooling and Servicing Agreement,
dated as of December 30, 1997, among the Transferor, Chargit, as Servicer, and
Bankers Trust Company, as Trustee (as amended, supplemented or otherwise
modified from time to time, the "POOLING AND SERVICING AGREEMENT"; capitalized
terms used herein and not otherwise defined herein are used herein as therein
defined). This Certificate (a "CLASS A CERTIFICATE") does not represent a
recourse obligation, and is not guaranteed by, the Transferor, the Company,
Chargit or any Affiliate of any of them.
This certifies that ______________________ (the "CLASS A
CERTIFICATEHOLDER") is the registered owner of a fractional undivided interest
in the assets of The ▇▇▇▇▇-▇▇▇▇▇▇▇ Master Trust (the "TRUST") created pursuant
to the Pooling and Servicing Agreement. Unless the certificate of authentication
hereon has been executed by or on behalf of the Trustee by manual
--------
* Denominations of $5,000,000 and multiples of $1,000 in excess thereof.
A-1-1
35
or facsimile signature, this Class A Certificate shall not be entitled to any
benefit under the Transaction Documents or be valid for any purpose.
Each purchaser, by its purchase of this Class A Certificate,
represents, acknowledges and agrees that: (1) it is purchasing "restricted"
securities which have not been and will not be registered under the Securities
Act; (2) if it should decide to dispose of any of such securities, it will not
offer, sell, transfer, pledge, hypothecate or otherwise dispose of any of such
securities except, (A) pursuant to Rule 144A under the Securities Act, (B) to a
sophisticated institutional investor that is an "accredited investor" (within
the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act) in a
transaction not involving any general solicitation or advertising as evidenced
by a certificate of the proposed transferor thereof delivered to the Trustee (in
the form attached hereto) or (C) pursuant to any other exemption from the
registration requirements of such Securities Act in each case in accordance with
any applicable state laws governing the offer or sale of securities; and (3) for
federal, state and local income and franchise tax law purposes, this Class A
Certificate is intended to be indebtedness of the Transferor secured by the
Receivables and the purchaser shall treat and report this Class A Certificate as
indebtedness of the Transferor for such purposes.
The corpus of the Trust consists of (i) a portfolio of
Receivables arising in connection with the Accounts identified under the Pooling
and Servicing Agreement from time to time, (ii) funds collected or to be
collected from Obligors in respect of the Receivables, (iii) all funds which are
from time to time on deposit in the Concentration Account, the Collection
Accounts and any other account or accounts held for the benefit of the
Certificateholders and (iv) all other assets and interests constituting the
Trust Assets.
This Class A Certificate is issued under and is subject to the
terms, provisions and conditions of the Transaction Documents, to which
Transaction Documents the Class A Certificateholder, by virtue of its acceptance
hereof, assents and is bound.
Although a summary of certain provisions of the Transaction
Documents is et forth below, this Class A Certificate does not purport to
summarize the Transaction Documents and is qualified in its entirety by the
terms and provisions of the Transaction Documents and reference is made to the
Transaction Documents for information with respect to the interests rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Trustee, the Servicer and the other parties bound
by the Transaction Documents. A copy of the Transaction Documents may be
requested by writing to the Trustee at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust and Agency Group/Structured Finance, at the
expense of the Transferor.
The Series 2000-1 Certificates are issued in two Classes, the
Class A Certificates (of which this Class A Certificate is one) and the
Subordinated Transferor Certificate, which is subordinated to the Class A
Certificates as described in the Transaction Documents. In addition to the
Series 2000-1 Certificates, the Transferor will issue an Exchangeable Transferor
Certificate pursuant to the Transaction Documents, which will represent a
fractional undivided interest in the Trust.
A-1-2
36
The Class A Certificates collectively represent a fractional
undivided interest in the Trust and the right to receive Collections and other
amounts, to the extent necessary to make the required payments with respect to
the Class A Certificates, at the times and in the amounts specified in the
Transaction Documents from time to time.
The Class A Invested Amount with respect to any date will be
determined as set forth in the Series 2000-1 Supplement. The Class A Invested
Amount and the amount of any Increases and distributions of principal to the
Class A Certificateholders shall be recorded on the Certificate Register.
Interest on the unpaid Class A Invested Amount outstanding
from time to time shall accrue at a rate per annum equal to the Class A
Certificate Rate in effect from time to time applicable to this Class A
Certificate and shall become due on the dates specified in the Transaction
Documents for distributions of amounts on account of such interest until the
Class A Invested Amount shall have been reduced to zero. Interest with respect
to the Class A Certificates shall be distributed to the Class A
Certificateholders on each Distribution Date. Payment of any installment of
interest on Class A Certificates will be made or caused to be made by the
Trustee to the person in whose name such Class A Certificate is registered at
the close of business on the Record Date. Payment of such interest will be made
by wire transfer to a designated account maintained by the Class A
Certificateholder; provided that such Class A Certificateholder has provided the
Trustee with the wire transfer designation, in writing, received by the Trustee
on or prior to the relevant Record Date. In the absence of such timely wire
transfer instructions, payment will be made by check to the address of record of
the Class A Certificateholder.
Payment of principal in reduction of this Class A Certificates
will be made by wire transfer to a designated account maintained by the Class A
Certificateholder. The final distribution on a Class A Certificate will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of a Class A Certificate at the Corporate Trust
Office of the Trustee.
The Class A Certificates do not represent an obligation of, or
an interest in, the Transferor, the Servicer, the Company or any Affiliate of
any of them. This Class A Certificate is limited in right of payment to certain
Collections of the Receivables (and certain other amounts), all as more
specifically set forth hereinabove and in the Transaction Documents.
The Class A Certificates are only issuable in registered form
without coupons in denominations of $5,000,000 and integral multiples of $1,000
in excess thereof. Class A Certificates are transferable upon surrender of the
Class A Certificate, and any other required documents, to an office of the
Trustee, where newly executed and authenticated Class A Certificates in the name
of the designated transferee will be delivered.
As provided in the Transaction Documents and subject to
certain limitations therein set forth, this Class A Certificate is exchangeable
for new Class A Certificates of the same Series evidencing a like aggregate
fractional undivided interest in the Trust, as requested
A-1-3
37
by the Class A Certificateholder surrendering this Class A Certificate. No
service charge will be imposed for any such transfer or exchange, but the
Transfer Agent and Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith.
This Class A Certificate shall be construed in accordance with
and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Transferor has caused this Class A
Certificate to be duly executed.
THE EL-BEE RECEIVABLES CORPORATION
By:
-------------------------------
Name:
Title:
A-1-4
38
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the
within-mentioned Pooling and Servicing Agreement.
Dated: ______ __, ___
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: OR
-------------------------- ---------------------------------------
Authorized Signer as Authenticating Agent for the Trustee
By:
-----------------------------------
Authorized Signer
39
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned Certificateholder hereby
sell(s),assign(s) and transfer(s) unto ____________, whose taxpayer
identification number is __________, and whose address, including postal zip
code, is ________, the within Security capitalized terms used herein and not
otherwise defined herein are used herein as defined therein) and all rights
thereunder, hereby irrevocably constituting and appointing
______________________ attorney-in-fact to transfer said Security on the books
of the Trustee with full power of substitution in the premises.
In connection with the transfer of this security, the
undersigned holder certifies that:
[CHECK ONE]
[ ] (A) This security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in
compliance with the exemption from registration under the
Securities Act provided by Rule 144A.
[ ] (B) This Security is being transferred to a sophisticated
institutional investor which is an "accredited investor" (within
the meaning of Rule 501(a) (1) (2), (3) or (7) under the
Securities Act) in a transaction not involving any general
solicitation or advertising.
[ ] (C) This Security is being transferred in compliance with another
exemption from registration under the Securities Act.
Dated: Name:
---------------------- --------------------------
By:
--------------------------
Title:
--------------------------
NOTICE: The signature of the
holder of this assignment must
correspond with the name as
written upon the face of the
within instrument in every
particular, without any change
whatsoever.
* If Box C is checked, the Trustee shall receive from the proposed
transferee, prior to the Trustee being required to effect the transfer
of this Security, a written opinion of counsel stating that such
transfer is exempt from the registration requirements of the Securities
Act and the basis therefor.
40
SIGNATURE GUARANTEED
---------------------------------
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE TRUSTEE SHALL NOT BE OBLIGATED TO
REGISTER THIS SECURITY IN THE NAME OF ANY PERSON OTHER THAN THE HOLDER HEREOF
UNLESS AND UNTIL THE CONDITIONS TO ANY SUCH TRANSFER OF REGISTRATION SET FORTH
HEREIN, ON THE FACE HEREOF AND IN THE TRANSACTION DOCUMENTS, SHALL HAVE BEEN
SATISFIED.
41
EXHIBIT A-2
FORM OF SUBORDINATED TRANSFEROR CERTIFICATE
-------- ---, --
REGISTERED Variable Principal Amount* *
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT'), AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
Certificate No. _____
SERIES 2000-1
SUBORDINATED TRANSFEROR FLOATING RATE CERTIFICATE
THIS CERTIFICATE REPRESENTS AN
UNDIVIDED INTEREST IN CERTAIN ASSETS OF THE
▇▇▇▇▇-▇▇▇▇▇▇▇ MASTER TRUST
the corpus of which consists primarily of certain receivables generated from
time to time by The ▇▇▇▇▇-▇▇▇▇▇▇▇ Stores Corp. (the "COMPANY") which are then
purchased by The El-Bee Chargit Corp. ("CHARGIT") (together, the "ORIGINATORS")
and then purchased by The El-Bee Receivables Corporation (the "TRANSFEROR"),
from the Originators, which in turn transfers and assigns such receivables to
The ▇▇▇▇▇-▇▇▇▇▇▇▇ Master Trust pursuant to the Pooling and Servicing Agreement,
dated as of December 30, 1997, among the Transferor, Chargit, as Servicer, and
Bankers Trust Company, as Trustee (as amended, supplemented or otherwise
modified from time to time, the "POOLING AND SERVICING AGREEMENT"; capitalized
terms used herein and not otherwise defined herein are used herein as therein
defined). This Certificate (the "SUBORDINATED TRANSFEROR CERTIFICATE") does not
represent a recourse obligation, and is not guaranteed by, the Transferor, the
Company, Chargit or any Affiliate of any of them.
This certifies that _______________________ (the "SUBORDINATED
TRANSFEROR CERTIFICATEHOLDER") is the registered owner of a fractional undivided
interest in the assets of The ▇▇▇▇▇-▇▇▇▇▇▇▇ Master Trust (the "TRUST") created
pursuant to the Pooling and Servicing Agreement. Unless the certificate of
authentication hereon has been executed by or on behalf of
---------------------
*
A-2-1
42
the Trustee by manual or facsimile signature, this Subordinated Transferor
Certificate shall not be entitled to any benefit under the Transaction Documents
or be valid for any purpose.
This Subordinated Transferor Certificate is not transferable
or assignable.
The corpus of the Trust consists of (i) a portfolio of
Receivables arising in connection with Accounts identified under the Pooling and
Servicing Agreement from time to time, (ii) funds collected or to be collected
from Obligors in respect of the Receivables, (iii) all funds which are from time
to time on deposit in the Concentration Account, the Collection Accounts and any
other account or accounts held for the benefit of the Certificateholders and
(iv) all other assets and interests constituting the Trust Assets.
This Subordinated Transferor Certificate is issued under and
is subject to the terms, provisions and conditions of the Transaction Documents,
to which Transaction Documents the Subordinated Transferor Certificateholder, by
virtue of the acceptance hereof, assents and is bound.
Although a summary of certain provisions of the Transaction
Documents is set forth below, this Subordinated Transferor Certificate does not
purport to summarize the Transaction Documents and is qualified in its entirety
by the terms and provisions of the Transaction Documents and reference is made
to the Transaction Documents for information with respect to the interests,
rights, benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee, the Servicer and the other
parties bound by the Transaction Documents. A copy of the Transaction Documents
may be requested by writing to the Trustee, at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust and Agency Group/Structured Finance, at
the expense of the Transferor.
The Series 2000-1 Certificates are issued in three Classes,
the Class A Certificates and the Subordinated Transferor Certificate, which is
subordinated to the Class A Certificates as described in the Transaction
Documents. In addition to the Series 2000-1 Certificates, the Transferor will
issue an Exchangeable Transferor Certificate pursuant to the Transaction
Documents, which will represent a fractional undivided interest in the Trust.
The Subordinated Transferor Certificate collectively represent
a fractional undivided interest in the Trust and the right to receive
Collections and other amounts, to the extent necessary to make the required
payments with respect to the Subordinated Transferor Certificate, at the times
and in the amounts specified in the Transaction Documents from time to time.
The Subordinated Transferor Invested Amount with respect to
any date will be determined as set forth in the Series 2000-1 Supplement. The
Subordinated Transferor Invested Amount and the amount of any distributions of
principal to the Subordinated Transferor Certificateholder shall be recorded on
the Certificate Register.
A-2-2
43
Interest on the unpaid Subordinated Transferor Invested Amount
outstanding from time to time shall accrue at a rate per annum equal to the
Subordinated Transferor Certificate Rate in effect from time to time applicable
to this Subordinated Transferor Certificate and shall become due on the dates
specified in the Transaction Documents for distributions of amounts on account
of such interest until the Subordinated Transferor Invested Amount shall have
been reduced to zero. Interest with respect to the Subordinated Transferor
Certificate shall be distributed to the Subordinated Transferor
Certificateholder in accordance with the Transaction Documents. Payment of any
installment of interest on Subordinated Transferor Certificate will be made or
caused to be made by the Trustee to the Subordinated Transferor
Certificateholder. Payment of such interest will be made by wire transfer to a
designated account maintained by the Subordinated Transferor Certificateholder;
PROVIDED that the Subordinated Transferor Certificateholder has provided the
Trustee with the wire transfer designation, in writing, received by the Trustee
on or prior to the relevant Record Date. In the absence of such timely wire
transfer instructions, payment will be made by check to the address of record of
the Subordinated Transferor Certificateholder.
Payment of principal in reduction of Subordinated Transferor
Certificate will be made by wire transfer to a designated account maintained by
the Subordinated Transferor Certificateholder. The final distribution on a
Subordinated Transferor Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
a Subordinated Transferor Certificate at the Corporate Trust Office of the
Trustee.
The Subordinated Transferor Certificate does not represent an
obligation of, or an interest in, the Transferor, the Servicer, the Company or
any Affiliate of any of them. This Subordinated Transferor Certificate is
limited in right of payment to certain Collections of the Receivables (and
certain other amounts), all as more specifically set forth hereinabove and in
the Transaction Documents.
As provided in the Transaction Documents and subject to
certain limitations therein set forth, this Subordinated Transferor Certificate
is exchangeable for a new Subordinated Transferor Certificate of the same Series
evidencing a like aggregate fractional undivided interest in the Trust, as
requested by the Subordinated Transferor Certificateholder surrendering this
Subordinated Transferor Certificate. No service charge will be imposed for any
such transfer or exchange, but the Transfer Agent and Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
This Subordinated Transferor Certificate shall be construed in
accordance with and governed by the laws of the State of New York.
A-2-3
44
IN WITNESS WHEREOF, the Transferor has caused this
Subordinated Transferor Certificate to be duly executed.
THE EL-BEE RECEIVABLES CORPORATION
By:
---------------------------------
Name:
Title:
A-2-4
45
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Subordinated Transferor Certificate described in
the within-mentioned Pooling and Servicing Agreement.
Dated: _________ ___, ___
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: OR
------------------------ ---------------------------------------
Authorized Signer as Authenticating Agent for the Trustee
By:
-----------------------------------
Authorized Signer