FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT to the Receivables Purchase Agreement
(the "Receivables Purchase Agreement") dated as of February 2, 1998
by and between Younkers Credit Corporation, a Delaware corporation (the
"Buyer") and ▇▇▇▇▇▇▇▇'▇, Inc., a Tennessee corporation that is the
successor by merger to Younkers, Inc. (the "Company"). Capitalized
terms used but not defined herein have their respective defined
meanings as set forth in the Receivables Purchase Agreement.
WHEREAS, the Buyer and the Company entered into that certain
Receivables Purchase Agreement dated as of June 13, 1995 (the
"Receivables Purchase Agreement"), pursuant to which the Buyer
purchases, and the Company sells, certain Receivables arising from
time to time under certain of the Company's Accounts and Additional
Accounts;
WHEREAS, the Company desires to contribute and transfer such
Accounts and Additional Accounts that are the subject of the
Receivables Purchase Agreement to its wholly-owned subsidiary,
National Bank of the Great Lakes, a national banking association
located in Elmhurst, Illinois (the "Bank"); and
WHEREAS, the Company and the Buyer desire to amend the
Receivables Purchase Agreement to permit the transfer of such
Accounts and Additional Accounts to the Bank and to make the Bank
a Seller of Receivables to the Buyer under the Receivables Purchase
Agreement;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged by each party,
the parties hereto, intending to be legally bound, agree as
follows:
Section 1. Amendment of Certain References. Upon and after the Effective
Time (as defined below) of this Amendment, all references to the
Company and the Seller in the Receivables Purchase Agreement shall
refer to and mean the Bank. All references in the Receivables
Purchase Agreement shall mean and include Accounts and Charge
Account Agreements between customers of Younkers' Department Stores
and the Bank from and after the Effective Time.
Section 1. Specific Amendments to the Receivables
Purchase Agreement.
(a) Definitions contained in Section 1.1 shall be amended as
follows:
"Account" shall be amended to add the following
sentence at the end of such definition: The term
"Account" shall also include all Accounts contributed to
the Bank pursuant to the Assumption Agreement and
hereafter originated or established by the Bank on behalf
of the customers of the Younkers Department Stores.
"Bank" shall mean National Bank of the Great Lakes,
and its successors and assigns.
"Company" shall mean ▇▇▇▇▇▇▇▇'▇, Inc. as successor
by merger to Younkers, Inc., and following the Effective
Time shall mean the Bank.
"Effective Time" shall mean the beginning of
business on February 2, 1998.
"Purchase Rate" shall mean the percentage equivalent
of the decimal representation of the following
expression:
(1.00 + APY) minus (BDA + SF + PCF + OE + RF) where:
APY = average portfolio yield of the Seller
(expressed as the decimal equivalent of a
percentage) as reasonably determined over the
preceding twelve (12) months (or such other period
mutually agreed upon by the Buyer and the Seller);
BDA = an allowance for bad debts (expressed as the
decimal equivalent of a percentage), based on,
among other relevant factors, historical rates for
the previous twelve (12) months (or such other
period mutually agreed upon by the Buyer and the
Seller);
SF = a Servicer fee equal to 2.00% (expressed as
the decimal equivalent of a percentage) per annum;
PCF = the Buyer's cost of funds, as calculated from
time to time, equal to the sum (expressed as the
decimal equivalent of a percentage) of (i) the
product of a fraction equal to the adjusted
investor amount of all classes of Certificates
issued by the Trust (other than those held by the
Buyer) divided by the Aggregate Principal
Receivables multiplied by the prime rate (as
published in the Money Rates Section of The Wall
Street Journal) plus (ii) the product of (x) 20%
(to be adjusted from time to time based on changes
to the Buyer's reasonably estimated marginal cost
of capital) multiplied by (y) a fraction equal to
the sum of the Transferor Amount plus the investor
amount of any class of Certificates held by the
Buyer divided by the Aggregate Principal
Receivables;
OE = the fraction (expressed as the decimal
equivalent of a percentage), the numerator of which
is the Buyer's annualized estimate of projected
operating expenses for the next twelve (12) months
and the denominator of which is the estimated
outstanding principal balance of Receivables
expected to be sold by the Seller to the Buyer in
the next twelve (12) months; and
RF = a contingency risk factor (expressed as the
decimal equivalent of a percentage) based on
industry and economic considerations, as determined
by the Buyer in its reasonable discretion and as
agreed upon between the Buyer and the Seller.
(b) The Receivables Purchase Agreement is hereby amended by
deleting Section 3.1 thereof in its entirety and substituting in
lieu thereof the following:
SECTION 3.1. Purchase Price.SECTION 3.1. Purchase Price
The Purchase Price for the Receivables and related property (including
Receivables and related property in Additional Accounts
and Deferred Receivables) conveyed on any date after the
Closing Date shall be the dollar amount equal to the
product of (i) the aggregate outstanding principal
balance of the Receivables sold at any date as reflected
in the applicable Settlement Statement or any other
certificate delivered pursuant thereto or pursuant to
this Agreement as in effect prior to the date hereof and
(ii) the Purchase Rate on such date.
(c) Section 3.3 shall be amended and replaced in its entirety
by the following:
SECTION 3.3. Payment of Purchase Price.
(a) The Purchase Price for the Receivables sold upon and
after the Effective Time shall be paid by payment of cash in
immediately available funds. The Buyer may obtain the cash to pay
the Purchase Price from the sale of Eligible Receivables to the
Trust, and pursuant to advances pursuant to a Subordinated Note
(the "Subordinated Note") between ▇▇▇▇▇▇▇▇'▇, Inc. and the Buyer
(such advance and any advance thereunder as contemplated by Section
3.2(b), each an "Advance") and contributions to the capital of the
Buyer by ▇▇▇▇▇▇▇▇'▇.
(b) The Purchase Price for the Receivables sold by the Seller
on any date after the Effective Time (each, a "Purchase Date")
shall be paid in cash to the Seller from proceeds from (i) the sale
by the Buyer of the Receivables to the Trust or (ii) as the Buyer
may elect, in its sole discretion, from proceeds of an Advance
under the Subordinated Note or (iii) a capital contribution by
▇▇▇▇▇▇▇▇'▇ to the Buyer or (iv) any combination of the foregoing.
In the event the Buyer does not have sufficient cash to pay the
Purchase Price due on any Purchase Date, or ▇▇▇▇▇▇▇▇'▇ determines,
in its sole discretion not to make a capital contribution to the
Buyer, ▇▇▇▇▇▇▇▇'▇, Inc., subject to the terms hereof, irrevocably
agrees to make an Advance on such Purchase Date in an original
principal amount equal to such cash insufficiency.
(c) The terms and conditions of the Subordinated Note and all
Advances thereunder shall be as follows:
(i) Repayment of Advances. All amounts paid by the
Buyer with respect to the Advances shall be allocated
first to the repayment of accrued interest until all
such interest is paid, and then to the outstanding
principal amount of the Advances. Subject to the
provisions of this Agreement, the Buyer may borrow,
repay and reborrow Advances on and after the date
hereof and prior to the termination of this Agreement,
subject to the terms, provisions and limitations set
forth herein.
(ii) Interest. The Subordinated Note shall bear
interest from its date on the outstanding principal
balance thereof at a rate per annum equal to one month
LIBOR as published in the Money Rates Section of The
Wall Street Journal. Interest on each Advance shall
be computed based on the actual number of days elapsed
based upon a year of 360 days.
(iii) Sole and Exclusive Remedy; Subordination. The
Subordinated Note shall be fully subordinated to any
rights of the Trustee, the Certificateholders and
their permitted assigns pursuant to the Pooling and
Servicing Agreement, all on the terms and conditions
set forth in the Subordinated Note, and shall not
evidence any rights in the Receivables.
(d) Section 4.1(a) is hereby amended by deleting existing
Section 4.1(a) in its entirety and substituting in lieu thereof the
following:
"(a) Organization, Good Standing and Qualification.
Such Seller is duly organized and validly existing
in good standing under the laws of the United
States or the jurisdiction of its organization, and
has full corporate power, authority and right to
own its properties and to conduct its business as
such properties are presently owned and such
business is presently conducted, and to execute,
deliver and perform its obligations under this
Agreement. Such Seller is duly qualified to do
business and is in good standing in each State
where the nature of its business requires it to be
so qualified."
(e) Section 4.2 is hereby amended by adding the
following to the end of such Section 4.2:
(g) Not an Investment Company. The Seller is not, and
is not controlled by, an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(h) ERISA. The Seller and each of its ERISA Affiliates
is in compliance in all material respects with ERISA and
no lien exists in favor of the Pension Benefit Guaranty
Corporation on any of the Receivables.
(i) Bulk Sales. No transaction contemplated by this
Agreement requires compliance with any bulk sales act or
similar law.
(j) No Insolvency. The Seller is not insolvent
immediately prior to any transfer of Receivables
hereunder, and will not be rendered insolvent immediately
following such transfer.
(k) Reasonably Equivalent Value. The Buyer has given
reasonably equivalent value to the Seller in
consideration for the transfer and sale to the Buyer of
the applicable Receivables and other property from such
Seller, and each such transfer shall not have been made
for or on account of an antecedent debt owed by such
Seller to the Buyer. The Seller acknowledges that it
will receive reasonably equivalent value in consideration
for the transfer to the Buyer of all Receivables and
other property now or hereafter to be transferred and
sold hereunder.
The Buyer and the Servicer may rely upon any of
these representations and warranties, and any of the
covenants and agreements of the Seller contained herein
in connection with any transactions pursuant to the
Pooling and Servicing Agreement.
(f) Subsection (d) of Section 5.1 is deleted and replaced in
its entirety the following:
"(d) Security Interests. Except for the conveyances
hereunder and under any Assumption Agreement delivered
pursuant to Section 2.3, (i) such Seller will not sell,
pledge, assign or transfer any Account or any Receivable to
any other Person (other than any other Seller), or grant,
create, incur, assume or suffer to exist any Lien on any
Account or any Receivable, whether now existing or hereafter
created, or any interest therein; (ii) such Seller shall
immediately notify Buyer and the Trustee of the existence of
any Lien on any Receivable; and (iii) such Seller shall defend
the right, title and interest of Buyer and its successors and
assigns in, to and under the Receivables, whether now existing
or hereafter created, against all claims of third parties
claiming through or under such Seller; provided, however, that
nothing in this Section 5.1(d) shall prevent or be deemed to
prohibit such Seller from suffering to exist upon any of the
Accounts or Receivables any Liens for state, municipal or
other local taxes if such taxes shall not at the time be due
and payable or if such Seller shall concurrently be contesting
the validity thereof in good faith by appropriate proceedings
and shall have set aside on its books adequate reserves with
respect thereto."
(g) The Receivables Purchase Agreement is hereby further
amended by deleting subsection (j) of Section 5.1 thereof in its
entirety and substituting in lieu thereof the following:
"(j) Conveyance of Accounts. Such Seller shall not
convey, assign, exchange or otherwise transfer the Accounts to
any Person (other than to any other Seller) prior to the
termination of this Agreement and the Servicing Agreement
except pursuant to an Assumption Agreement delivered pursuant
to Section 2.3."
(h) Section 5.1 is further amended by adding the following to
the end of such Section 5.1:
(n) Sale Treatment. The Seller agrees to treat this
conveyance for all purposes (including, without
limitation, tax and financial accounting purposes) as a
sale and, to the extent any such reporting is required,
shall report the transactions contemplated by this
Agreement on all relevant books, records, tax returns,
financial statements and other applicable documents as a
sale of the Receivables to the Buyer.
(h) Section 6.2 relating to "Optional Repurchases" of
Receivables is deleted in its entirety, all references in Section
6.3 to "Optional Repurchases" and to Section 6.2 are deleted,
Sections 6.3 and 6.4 are renumbered 6.2 and 6.3, respectively, and
Section 6.5 is deleted in its entirety.
(i) The address for notices to the Bank contained in Section
9.3 is hereby amended to read as follows:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Section 1. Amendments to Schedules. Schedule 2 to the
Receivables Purchase Agreement is amended to read in its entirety
as attached hereto.
Section 2. Assumption Agreement. The Bank, in connection
with this Amendment, has executed and delivered an Assumption
Agreement that is supplemental to the Receivables Purchase
Agreement, whereby the Bank has agreed to perform every covenant
and obligation of the Seller under the Receivables Purchase
Agreement as hereby amended and shall obtain and have all rights of
Seller under such Receivables Purchase Agreement, as amended,
together with an Officer's Certificate and an Opinion of Counsel
which have been accepted by the Buyer in full satisfaction of the
requirements of Section 5.1(l) of the Receivables Purchase
Agreement.
Section 3. References to the Receivables Purchase Agreement.
Upon and after the Effective Time of this Amendment, each reference
to the Receivables Purchase Agreement in any agreement, document or
instrument shall be deemed to be a reference to the Receivables
Purchase Agreement, as amended by this First Amendment, and as the
same may be further amended, restated, supplemented or otherwise
modified from time to time in accordance with Section 9.1 of the
Receivables Purchase Agreement.
Section 4. Benefits. This First Amendment shall be binding
upon, and shall inure to the benefit of, the parties hereto and
their respective successors and assigns and shall benefit the
Trustee on behalf of all Certificateholders.
Section 5. Governing Law. This First Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 6. Effect. This Amendment shall become effective as
of the beginning of business on February 2, 1998 (the "Effective
Time"). Except as expressly amended herein, the terms and
conditions of the Receivables Purchase Agreement shall remain in
full force and effect.
Section 7. Counterparts. This First Amendment may be
executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which shall constitute one and
the same agreement and which shall be binding upon all parties,
their successors and assigns
ANNEX
Schedule 2 of the
Receivables Purchase Agreement
The above Schedule is amended to include the following
locations of the Bank's chief executive office and locations of
records:
Name of Entity
Place of Business
and Chief Executive Office
Additional
Locations of Records
National Bank of the Great Lakes
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mailing Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed under seal by their respective duly
authorized officers as of the date first written above.
THE COMPANY:
▇▇▇▇▇▇▇▇'▇, INC., the successor by merger
to Younkers, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BUYER:
YOUNKERS CREDIT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
Acknowledged as of the 31st day of January 1998 by the
undersigned duly authorized officer of the Trustee.
The Chase Manhattan Bank, successor by merger to Chemical Bank, as Trustee
under the Younkers Master Trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President