EXHIBIT 4.4
AMENDMENT NO. 1 TO
CLASS A CERTIFICATE PURCHASE AGREEMENT
THIS AMENDMENT NO. 1, dated as of October 16, 1998 by and among SRI
RECEIVABLES PURCHASE CO., INC., a Delaware corporation ("SRPC"), individually
and as Transferor (as defined below), SPECIALTY RETAILERS, INC., a Texas
corporation ("SRI"), individually and as Servicer (as defined below), the CLASS
A PURCHASERS parties hereto (collectively, the "CLASS A PURCHASERS") and CREDIT
SUISSE FIRST BOSTON, a Swiss banking corporation acting through its New York
Branch ("CSFB"), as Class A Agent and as Facility Agent (each as defined below).
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to the Class A Certificate Purchase
Agreement, dated as of December 3, 1997, as modified by the increase and
extension of commitment thereunder dated as of September 28, 1998 (as so
modified, the "CERTIFICATE PURCHASE AGREEMENT"; terms used in this Amendment and
not otherwise defined herein being used as defined in, or for purposes of, the
Certificate Purchase Agreement), relating to the purchase by the Class A
Purchasers of the Class A Initial Invested Amount and from time to time of
Additional Class A Invested Amounts in respect of the Class A Variable Funding
Certificates, Series 1997-1 issued by the SRI Receivables Master Trust; and
WHEREAS, the Transferor has requested that the Class B Purchasers consent
to a proposed Amended and Restated Supplement to be dated as of October 16,
1998, which would amend and, as so amended, restate the Supplement (as so
amended and restated, the "RESTATED SUPPLEMENT"); and
WHEREAS, pursuant to the Restated Supplement, the Trust proposes to issue
its Class B-2 Variable Funding Certificates, Series 1997-1 (the "CLASS B-2
CERTIFICATES"), which would be sold to certain purchasers (the "CLASS B-2
PURCHASERS") pursuant to a Class B-2 Certificate Purchase Agreement, dated as of
October 16, 1998, among SRPC, individually and as Transferor, SRI, individually
and as Servicer, the Class B-2 Purchasers, CSFB, as Class B-2 Agent (in such
capacity, the "CLASS B-2 AGENT"), and the Facility Agent; and
WHEREAS, in connection with the Restated Supplement and the issuance of the
Class B-2 Certificates, the Transferor has requested that the other parties
hereto amend the Certificate Purchase Agreement in certain respects and that the
Class A Purchasers, the Class A Agent and the Facility Agent consent to the
amendments to and restatement of the Supplement set forth in the Restated
Supplement; and
WHEREAS, the other parties hereto are willing to consent to such amendments
and to such restatement on the terms and conditions provided for herein;
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and adequacy of which are
hereby expressly acknowledged, the parties hereto agree as follows:
I. SECTION AMENDMENTS TO SECTION 1.1.
A. The definition of "Related Documents" contained in Section 1.1 is hereby
amended and restated to read in its entirety as follows:
"RELATED DOCUMENTS" shall mean, collectively, this Agreement
(including the Class A Fee Letter and all Joinder Supplements and Transfer
Supplements), the Class B Purchase Agreement, the Class B-2 Purchase
Agreement, the Master Pooling and Servicing Agreement, the Supplement, the
Series 1997-1 Certificates, the Receivables Purchase Agreement and the
Receivables Transfer Agreement.
A. The following definitions are hereby added to Section 1.1 of the Certificate
Purchase Agreement in their appropriate alphabetical order:
"CLASS B-2 CERTIFICATE PURCHASE AGREEMENT" shall mean the Class B-2
Certificate Purchase Agreement, dated as of October 16, 1998 among SRPC,
individually and as Transferor, SRI, individually and as Servicer, the
Class B-2 Purchasers parties thereto, the Class B-2 Agent referred to
therein and the Facility Agent, as amended, modified or otherwise
supplemented from time to time.
"CLASS B-2 CERTIFICATES" shall mean the Trust's Class B-2 Variable
Funding Certificates, Series 1997-1.
"GRANITE" shall mean Granite National Bank, N.A., a national banking
association, which is a subsidiary of Stage.
"RECEIVABLES TRANSFER AGREEMENT" shall mean the Receivables Transfer
Agreement, dated as of August 1, 1998, between SRI, as purchaser, and
Granite, as transferor, as the same may from time to time be amended or
otherwise modified.
I. SECTION AMENDMENT TO SUBSECTION 3.2. Subsection 3.2(d) of the Certificate
Purchase Agreement is hereby amended and restated to read in its entirety as
follows:
(d) after giving effect to such purchase, (i) the sum of the Class B
Invested Amount, the Class B-2 Invested Amount and the Class C Invested
Amount shall equal not less than 25% of the Invested Amount on the
applicable Purchase Date and (ii) the sum of the Class B-2 Invested Amount
and the Class C Invested Amount shall not be less than 5% of the highest
Invested Amount during the 180 days preceding such Purchase Date;
I. SECTION AMENDMENT TO SECTION 4.2. Subsection (m) of Section 4.2 of the
Certificate Purchase Agreement is hereby replaced by the following new
subsections (m) and (n):
(m) The representations and warranties of Granite set forth in Section
4.02 and 4.03 of the Receivables Transfer Agreement are true and correct in
all material respects.
(n) All written factual information heretofore furnished by SRPC, SRI,
Granite or Stage to, or for delivery to, the Class A Agent for purposes of
or in connection with this Agreement, including information relating to the
Accounts, the Receivables and the credit card business of SRPC, SRI or
Granite, was true and correct in all material respects on the date as of
which such information was stated or certified and remains true and correct
in all material respects (unless such information specifically relates to
an earlier date in which case such information shall have been true and
correct in all material respects on such earlier date).
I. SECTION AMENDMENTS TO SECTION 5.1.
A. Subsection 5.1(e) of the Certificate Purchase Agreement is hereby amended and
restated to read as follows:
(e) SRI shall furnish to the Class A Agent (i) promptly when publicly
available, the annual (audited) and quarterly (unaudited) consolidated and
consolidating financial statements of each of Stage and SRPC, the publicly
available portions of Granite's quarterly and annual consolidated reports
of condition and income and such other publicly available financial
information, if any, as to Stage, SRI, Granite or SRPC as the Class A Agent
may request, and (ii) promptly after known to SRI, information with respect
to any action, suit or proceeding involving SRI or any of its Affiliates by
or before any court or any
Governmental Authority which, if adversely determined, would materially
adversely affect the business, results of operation or financial condition
of SRPC, SRI or Granite;
A. Subsection 5.1(k) of the Certificate Purchase Agreement is hereby amended and
restated to read as follows:
(k) the Transferor and the Servicer shall timely make all payments,
deposits or transfers and give all instructions to transfer required by
this Agreement, the Pooling and Servicing Agreement, the Receivables
Purchase Agreement and the Receivables Transfer Agreement;
I. SECTION AMENDMENT TO SECTION 6.1. Section 6.1 of the Certificate Purchase
Agreement is hereby amended and restated to read as follows:
6.1 COVENANTS OF SRPC, ETC. SRPC, SRI, the Transferor and the Servicer
shall hold in confidence, and not disclose to any Person, the terms of any
fees payable in connection with this Agreement except they may disclose
such information (i) to their officers, directors, employees, agents,
counsel, accountants, auditors, advisors or representatives, (ii) with the
consent of the Required Class B-2 Purchasers and Class B-2 Agent, or (iii)
to the extent SRPC, SRI, Granite, the Transferor or the Servicer or any
Affiliate of either of them should be required by any law or regulation
applicable to it or requested by any Governmental Authority to disclose
such information; PROVIDED, that, in the case of clause (iii), SRPC, the
Transferor, SRI, Granite or the Servicer, as the case may be, will use all
reasonable efforts to maintain confidentiality and will (unless otherwise
prohibited by law) notify the Class A Agent of its intention to make any
such disclosure prior to making such disclosure.
I. SECTION AMENDMENTS TO ARTICLE 7.
A. Sections 7.3, 7.6 and 7.7 of the Certificate Purchase Agreement are hereby
amended to add "Granite," after "SRI," each time such word appears therein.
A. Subsection 7.9(b) of the Certificate Purchase Agreement is hereby amended and
restated to read as follows:
(b) The Facility Agent may resign as Facility Agent upon ten days'
notice to the Class A Purchasers, the Class B Purchasers (as defined in the
Class B Certificate Purchase Agreement), the Class B-2 Purchasers (as
defined in the Class B-2 Certificate Purchase Agreement), the Trustee, the
Transferor and
the Servicer with such resignation becoming effective upon a successor
agent succeeding to the rights, powers and duties of the Facility Agent
pursuant to this subsection 7.9(b). If the Facility Agent shall resign as
Facility Agent under this Agreement, then the Required Class A Purchasers
and the Required Class A Owners shall appoint from among the Committed
Class A Purchasers hereunder or the Committed Class B Purchasers under the
Class B Certificate Purchase Agreement a successor Facility Agent of the
Class A Certificateholders and the Class B Certificateholders as provided
in the Supplement; PROVIDED that no such appointment shall be effective
unless such successor is also appointed as successor Facility Agent under
the Class B Certificate Purchase Agreement and the Class B-2 Certificate
Purchase Agreement. The successor agent shall succeed to the rights, powers
and duties of the Facility Agent, and the term "Facility Agent" shall mean
such successor agent effective upon its appointment, and the former
Facility Agent's rights, powers and duties as Facility Agent shall be
terminated, without any other or further act or deed on the part of such
former Facility Agent or any of the parties to this Agreement. After the
retiring Facility Agent's resignation as Facility Agent, the provisions of
this Section 7 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Facility Agent under this Agreement.
I. SECTION CONSENT. Each Class A Purchaser, Alpine Securitization Corp., as the
Class A Owner and the Class A Agent hereby consent to the Restated Supplement
and to the issuance of the Class B-2 Certificates thereunder and hereby direct
the Facility Agent to consent thereto. The Class A Agent hereby certifies that
its records reflect that Alpine Securitization Corp. is the sole Class A Owner.
I. SECTION REPRESENTATIONS AND WARRANTIES. In order to induce each Class A
Purchaser, the Class A Agent and the Facility Agent to enter into this Amendment
and to grant the consent set forth in Section 7 above,
A. SRPC hereby confirms that, after giving effect to this Amendment and the
Restated Supplement and to the transactions contemplated by the Class B-2
Certificate Purchase Agreement, its representations and warranties set forth or
referred to in the Certificate Purchase Agreement are true and correct in all
material respects as of the date hereof, as though made on and as of such date,
and that no event or condition which of itself or with the giving of notice or
the lapse of time or both would constitute a Termination Event has occurred and
is continuing; and
A. SRI hereby confirms that, after giving effect to this Amendment and the
Restated Supplement and to the transactions contemplated by the Class B-2
Certificate Purchase Agreement, its representations and warranties set forth or
referred to in the Certificate Purchase Agreement are true and correct in all
material
respects as of the date hereof, as though made on and as of such date, and that
no event or condition which of itself or with the giving of notice or the lapse
of time or both would constitute a Termination Event has occurred and is
continuing.
I. SECTION MISCELLANEOUS.
A. As amended by this Amendment, the Certificate Purchase Agreement is in all
respects ratified and confirmed, and the Certificate Purchase Agreement as
amended by this Amendment shall be read, taken and construed as one and the same
instrument.
A. This Amendment shall be effective as of the date first above written when
executed by SRPC, SRI, each Class A Purchaser, the Class A Owner, the Class A
Agent and the Facility Agent, subject to (i) the satisfaction of the conditions
precedent set forth in Section 3.1 of the Class B-2 Certificate Purchase
Agreement, and (ii) receipt by the Class A Agent of executed copies of all
opinions, certificates, letters and other documents required under Section 3.1
of the Class B-2 Certificate Purchase Agreement to be delivered to the Class B-2
Agent (each such opinion, unless otherwise agreed to by the Class A Agent, to be
addressed to the Class A Agent on behalf of the Class A Purchasers and the
Facility Agent or accompanied by a letter providing that the Class A Agent on
behalf of the Class A Purchasers and the Facility Agent may rely on such opinion
as if it were addressed to it), and such additional documents, instruments,
certificates or letters as the Class A Agent may reasonably request.
A. This Amendment shall be binding upon and inure to the benefit of SRPC, SRI,
the Transferor, the Servicer, the Class A Agent, the Facility Agent, the Class A
Purchasers, any Assignee and their respective successors and assigns, subject to
the provisions of Sections 8.1 and 9.4 of the Certificate Purchase Agreement.
A. This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
A. Any provisions of this Amendment which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction.
A. This Amendment may be amended from time to time only if the conditions set
forth in Section 9.1 of the Certificate Purchase Agreement are satisfied.
A. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers as of the day and year first above
written.
SRI RECEIVABLES PURCHASE CO., INC.,
individually and as Transferor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
SPECIALTY RETAILERS, INC.,
individually and as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice Chairman and
Chief Financial Officer
(principal financial and
accounting officer)
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Class A Agent
and as Facility Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
THE FOREGOING IS HEREBY
CONSENTED TO:
ALPINE SECURITIZATION CORP.
as a Class A Purchaser and as Class A Owner
By Credit Suisse First Boston, New York Branch,
its attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Class A Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate