EXHIBIT 4.9
EXECUTION COPY
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CLASS B CERTIFICATE PURCHASE AGREEMENT
Dated as of December 3, 1997
among
SRI RECEIVABLES PURCHASE CO., INC.,
individually and as Transferor,
SPECIALTY RETAILERS, INC.,
individually and as Originator and Servicer,
THE CLASS B PURCHASERS PARTIES HERETO,
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
Class B Agent and Facility Agent
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Relating to
SRI Receivables Master Trust
Series 1997-1
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.................................................1
1.1 Definitions................................................1
1.2 Other Definitional Provisions..............................8
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.............................8
2.1 Purchases..................................................8
2.2 Reductions, Increases and Extensions
of Commitments...........................................10
2.3 Fees, Expenses, Payments, Etc.............................12
2.4 Requirements of Law.......................................13
2.5 Taxes.....................................................15
2.6 Indemnification...........................................17
SECTION 3. CONDITIONS PRECEDENT.......................................19
3.1 Condition to Initial Purchase.............................19
3.2 Condition to Additional Purchase..........................21
SECTION 4. REPRESENTATIONS AND WARRANTIES.............................22
4.1 Representations and Warranties of SRPC....................22
4.2 Representations and Warranties of SRI.....................24
4.3 Representations and Warranties of the Class B Agent,
the Facility Agent and the Class B Purchasers............26
SECTION 5. COVENANTS..................................................27
5.1 Covenants of SRPC.........................................27
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY..............30
6.1 Covenants of SRPC, Etc....................................30
6.2 Covenants of Class B Purchasers...........................30
SECTION 7. THE AGENTS.................................................31
7.1 Appointment...............................................31
7.2 Delegation of Duties......................................31
7.3 Exculpatory Provisions....................................31
7.4 Reliance by Agent.........................................32
7.5 Notices...................................................32
7.6 Non-Reliance on Agent and Other Class B Purchasers........32
7.7 Indemnification...........................................33
7.8 Agents in Their Individual Capacities.....................33
7.9 Successor Agent...........................................34
(i)
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT...............35
8.1 Transfers of Class B Certificates.......................35
8.2 Tax Characterization....................................39
SECTION 9. MISCELLANEOUS..............................................39
9.1 Amendments and Waivers..................................39
9.2 Notices.................................................40
9.3 No Waiver; Cumulative Remedies..........................42
9.4 Successors and Assigns..................................42
9.5 Successors to Servicer..................................42
9.6 Counterparts............................................43
9.7 Severability............................................43
9.8 Integration.............................................43
9.9 Governing Law...........................................43
9.10 Termination..............................................43
9.11 Limited Recourse; No Proceedings.........................44
9.12 Survival of Representations and Warranties...............44
9.13 Submission to Jurisdiction; Waivers......................44
9.14 WAIVERS OF JURY TRIAL....................................45
LIST OF EXHIBITS
EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Joinder Supplement
EXHIBIT C Form of Transfer Supplement
(ii)
CLASS B CERTIFICATE PURCHASE AGREEMENT, dated as of December 3,
1997, by and among SRI RECEIVABLES PURCHASE CO., INC., a Delaware corporation
("SRPC"), individually and as Transferor (as defined in the Master Pooling and
Servicing Agreement referred to below), SPECIALTY RETAILERS, INC., a Texas
corporation ("SRI"), individually and as Servicer (as defined in the Master
Pooling and Servicing Agreement referred to below), the CLASS B PURCHASERS from
time to time parties hereto (collectively, the "CLASS B PURCHASERS") and CREDIT
SUISSE FIRST BOSTON, a Swiss banking corporation acting through its New York
Branch, as agent for the Class B Purchasers (together with its successors in
such capacity, the "CLASS B AGENT") and as facility agent for the Class B
Purchasers and the Class A Purchasers, as defined below (together with its
successors in such capacity, the "FACILITY AGENT").
W I T N E S S E T H:
WHEREAS, SRPC, as Transferor, SRI, as Servicer, and Bankers Trust
(Delaware), a Delaware banking corporation, as trustee (together with its
successors in such capacity, the "TRUSTEE"), are parties to a certain Amended
and Restated Pooling and Servicing Agreement dated as of August 11, 1995,
amended as of May 30, 1996 (as the same may from time to time be further amended
or otherwise modified, the "MASTER POOLING AND SERVICING AGREEMENT"), pursuant
to which the Transferor has created the SRI Receivables Master Trust (the
"TRUST"), and to a Series 1997-1 Supplement thereto, dated as of December 3,
1997 (as the same may from time to time be amended or otherwise modified, the
"SUPPLEMENT" and, together with the Master Pooling and Servicing Agreement, the
"POOLING AND SERVICING AGREEMENT");
WHEREAS, the Trust proposes to issue its Class A-1 Variable
Funding Certificates, Series 1997-1 (the "CLASS A CERTIFICATES") and its Class
B-1 Variable Funding Certificates, Series 1997-1 (the "CLASS B CERTIFICATES"
and, together with the Class A Certificates, the "SENIOR CERTIFICATES") pursuant
to the Pooling and Servicing Agreement;
WHEREAS, the Trust also proposes to issue its Class C-1 Variable
Funding Certificates, Series 1997-1 (the "CLASS C CERTIFICATES" and, together
with the Senior Certificates, the "SERIES 1997-1 CERTIFICATES") pursuant to the
Pooling and Servicing Agreement; and
WHEREAS, the Class B Purchasers are willing to purchase the Class
B Certificates on the Closing Date and from time to time thereafter to purchase
Additional Class B Invested Amounts (as defined in the Supplement) thereunder 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:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS. All capitalized terms used herein as defined
terms and not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement. Each capitalized term defined herein shall
relate only to the Series 1997-1 and to no other Series of Investor Certificates
issued by the Trust.
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"AFFECTED PARTY" shall mean, with respect to any Structured
Purchaser, any Support Party of such Structured Purchaser.
"AGREEMENT" shall mean this Class B Certificate Purchase
Agreement, as amended, supplemented or otherwise modified from time to time.
"ASSIGNEE" and "ASSIGNMENT" have the respective meanings
specified in subsection 8.1(e) of this Agreement.
"AVAILABLE COMMITMENT" shall mean, on any day for a Committed
Class B Purchaser, such Class B Purchaser's Commitment in effect on such day
MINUS the sum of (i) such Class B Purchaser's Percentage Interest of the Class B
Principal Balance on such day PLUS (ii) if such Class B Purchaser is a Liquidity
Provider for a Noncommitted Class B Purchaser, such Class B Purchaser's
Liquidity Percentage, MULTIPLIED BY such Noncommitted Class B Purchaser's
Percentage Interest of the Class B Principal Balance on such day.
"CLASS A CERTIFICATES" has the meaning specified in the recitals
to this Agreement.
"CLASS A PURCHASE AGREEMENT" shall mean the Class A Certificate
Purchase Agreement, dated as of the date hereof, among SRPC, individually and as
Transferor, SRI, individually and as Servicer, the Class A Purchasers parties
thereto, the Class A Agent referred to therein and the Facility Agent, as
amended, modified or otherwise supplemented from time to time.
"CLASS A PURCHASERS" has the meaning specified in the Class A
Purchase Agreement.
"CLASS B AGENT" has the meaning specified in the preamble to this
Agreement.
"CLASS B CERTIFICATES" has the meaning specified in the recitals
to this Agreement.
"CLASS B FACILITY FEE" shall mean the ongoing facility fees
payable to the Class B Agent or the Class B Purchasers in the amounts and on the
dates set forth in the Class B Fee Letter.
"CLASS B FEE LETTER" shall mean that certain letter agreement,
designated therein as the Series 1997-1 Class B Fee Letter and dated as of the
date hereof, among the Class B Agent, SRPC and SRI, as such letter agreement may
be amended or otherwise modified from time to time.
"CLASS B OWNERS" shall mean the Class B Purchasers that are
owners of record of the Class B Certificates or, with respect to any Class B
Certificate held by the Class B Agent hereunder as nominee on behalf of Class B
Purchasers, the Class B Purchasers that are owners of the Class B Invested
Amount represented by such Class B Certificate as reflected on the books of the
Class B Agent in accordance with this Agreement.
"CLASS B PURCHASE LIMIT" shall mean for any date the aggregate
Commitments of the Class B Purchasers on such date.
"CLASS B PURCHASER" has the meaning specified in the preamble to
this Agreement.
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"CLASS B REPAYMENT AMOUNT" shall mean the sum of all amounts
payable with respect to (i) the Class B Invested Amount, (ii) Class B Interest
and (iii) all amounts payable pursuant to Section 2.4 or 2.5 hereof.
"CLASS C CERTIFICATES" has the meaning specified in the recitals
to this Agreement.
"CLOSING DATE" shall mean December 3, 1997.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMITMENT" shall mean, for any Committed Class B Purchaser, the
maximum amount of such Committed Class B Purchaser's commitment to purchase a
portion of the Class B Invested Amount, as set forth in the Joinder Supplement
or the Transfer Supplement by which such Committed Class B Purchaser became a
party to this Agreement or assumed the Commitment (or a portion thereof) of
another Committed Class B Purchaser, as such amount may be adjusted from time to
time pursuant to Transfer Supplement(s) executed by such Committed Class B
Purchaser and its Assignee(s) and delivered pursuant to Section 8.1 of this
Agreement or pursuant to Section 2.2 of this Agreement. In the event that a
Committed Class B Purchaser maintains a portion of its Commitment hereunder in
its capacity as a Liquidity Provider for one or more Noncommitted Class B
Purchasers, such Committed Class B Purchaser shall be deemed to hold separate
Commitments hereunder (i) in each such capacity and (ii) if applicable, to the
extent its Commitment does not relate to any Noncommitted Class B Purchaser.
"COMMITMENT EXPIRATION DATE" shall mean, for a Committed Class B
Purchaser, the date set forth as the Commitment Expiration Date in the Joinder
Supplement or the Transfer Supplement by which such Committed Class B Purchaser
became a party to this Agreement or assumed the Commitment (or a portion
thereof) of another Committed Class B Purchaser, as such date may be extended
from time to time in accordance with subsection 2.2(e) hereof.
"COMMITMENT PERCENTAGE" shall mean, for a Committed Class B
Purchaser, such Class B Purchaser's Commitment as a percentage of the aggregate
Commitments of all Committed Class B Purchasers.
"COMMITTED CLASS B PURCHASER" shall mean any Class B Purchaser
which has a Commitment, as set forth in its respective Joinder Supplement, and
any Assignee of such Class B Purchaser to the extent of the portion of such
Commitment assumed by such Assignee pursuant to its respective Transfer
Supplement.
"COMMITTED PURCHASER PERCENTAGE" shall mean, with respect to a
Committed Class B Purchaser, its Commitment (exclusive of any portion thereof
held by it in its capacity as a Liquidity Provider), as a percentage of the
aggregate Commitments of all Committed Class B Purchasers.
"DISSENTING PURCHASER" has the meaning specified in subsection
2.2(e) of this Agreement.
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"DOWNGRADED PURCHASER" has the meaning specified in subsection
8.1(j) of this Agreement.
"EXCLUDED TAXES" has the meaning specified in subsection 2.5(a)
of this Agreement.
"EXTENSION NOTICE DEADLINE" has the meaning specified in
subsection 2.2(e) of this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"INDEMNITEE" has the meaning specified in subsection 2.6(a) of
this Agreement.
"INDEMNITOR" has the meaning specified in subsection 2.6(a) of
this Agreement.
"INVESTING OFFICE" shall mean initially, the office of any Class
B Purchaser (if any) designated as such, in the case of any initial Class B
Purchaser, in its Joinder Supplement and, in the case of any Assignee, in the
related Transfer Supplement, and thereafter, such other office of such Class B
Purchaser or such Assignee as may be designated in writing to the Class B Agent,
the Transferor, the Servicer and the Trustee by such Class B Purchaser or
Assignee.
"INVESTMENT LETTER" has the meaning specified in subsection
8.1(a) of this Agreement.
"JOINDER SUPPLEMENT" has the meaning specified in subsection
2.2(d) of this Agreement.
"LIQUIDITY PERCENTAGE" shall mean, for a Committed Class B
Purchaser which is a Liquidity Provider for a Noncommitted Class B Purchaser,
such Class B Purchaser's Commitment held in such capacity as a percentage of the
aggregate Commitments of all Liquidity Providers (held in their capacities as
such) for such Noncommitted Class B Purchaser.
"LIQUIDITY PROVIDER" shall mean, with respect to a Noncommitted
Class B Purchaser, each Committed Class B Purchaser identified as a Liquidity
Provider for such Noncommitted Class B Purchaser in the Joinder Supplement or
Transfer Supplement pursuant to which such Noncommitted Class B Purchaser became
a party hereto, and any Assignee of such Committed Class B Purchaser to the
extent such Assignee has assumed, pursuant to a Transfer Supplement, the
Commitment of such Committed Class B Purchaser held in its capacity as a
Liquidity Provider. In the event that a Liquidity Provider acquires a portion of
the Class B Principal Balance from its Noncommitted Class B Purchaser by
Assignment, a corresponding portion of its Commitment shall thereupon cease to
be held by it in its capacity as a Liquidity Provider for such Noncommitted
Class B Purchaser (but shall otherwise remain in effect, subject to the terms
and conditions of this Agreement, as a portion of the Commitment of such
Committed Class B Purchaser).
"MASTER POOLING AND SERVICING AGREEMENT" has the meaning
specified in the recitals to this Agreement.
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"NONCOMMITTED CLASS B PURCHASER" shall mean a Class B Purchaser
which is not a Committed Class B Purchaser or a Nonextending Class B Purchaser.
"NONCOMMITTED PURCHASER PERCENTAGE" shall mean for each
Noncommitted Class B Purchaser, the aggregate Commitments of its Liquidity
Providers from time to time as a percentage of the aggregate Commitments of all
Committed Class B Purchasers.
"NONEXTENDING CLASS B PURCHASER" shall mean, after its respective
Commitment Expiration Date, each Committed Class B Purchaser which has declined
to extend such Commitment Expiration Date in accordance with subsection 2.2(e)
hereof.
"PARTICIPANT" has the meaning specified in subsection 8.1(d) of
this Agreement.
"PARTICIPATION" has the meaning specified in subsection 8.1(d) of
the Agreement.
"PERCENTAGE INTEREST" shall mean, for a Class B Purchaser on any
day, the percentage equivalent of (a) the sum of (i) the portion of the Class B
Initial Invested Amount (if any) purchased by such Class B Purchaser, PLUS (ii)
the aggregate Additional Class B Invested Amounts (if any) purchased by such
Class B Purchaser prior to such day pursuant to Section 6.15 of the Pooling and
Servicing Agreement, PLUS (iii) any portion of the Class B Principal Balance
acquired by such Class B Purchaser as an Assignee from another Class B Purchaser
pursuant to a Transfer Supplement executed and delivered pursuant to Section 8.1
of this Agreement, MINUS (iv) the aggregate amount of principal payments made to
such Class B Purchaser prior to such day, MINUS (v) any portion of the Class B
Principal Balance assigned by such Class B Purchaser to an Assignee pursuant to
a Transfer Supplement executed and delivered pursuant to Section 8.1 of this
Agreement, DIVIDED BY (b) the aggregate Class B Principal Balance on such day.
"POOLING AND SERVICING AGREEMENT" has the meaning specified in
the recitals to this Agreement.
"PURCHASE DATE" shall mean the Closing Date and each Business Day
on which the purchase of an Additional Class B Invested Amount is to occur in
accordance with Section 6.15 of the Pooling and Servicing Agreement and Section
2.1 hereof.
"REDUCTION AMOUNT" has the meaning specified in subsection 2.6(a)
of this Agreement.
"REGULATORY CHANGE" shall mean, as to each Class B Purchaser, any
change occurring after the date of the execution and delivery of the Joinder
Supplement or the Transfer Supplement by which it became party to this
Agreement; in the case of a Participant, any change occurring after the date on
which its Participation became effective, or in the case of an Affected Party,
any change occurring after the date it became such an Affected Party, in any (or
the adoption after such date of any new):
(i) United States Federal or state law or foreign law applicable
to such Class B Purchaser, Affected Party or Participant; or
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(ii) regulation, interpretation, directive, guideline or request
(whether or not having the force of law) applicable to such Class B
Purchaser, Affected Party or Participant of any court or other judicial
authority or any Governmental Authority charged with the interpretation
or administration of any law referred to in clause (i) or of any fiscal,
monetary or other Governmental Authority or central bank having
jurisdiction over such Class B Purchaser, Affected Party or Participant.
"RELATED DOCUMENTS" shall mean, collectively, this Agreement
(including the Class B Fee Letter and all Joinder Supplements and Transfer
Supplements), the Class A Purchase Agreement (including each fee letter, joinder
supplement and transfer supplement thereunder), the Master Pooling and Servicing
Agreement, the Supplement, the Series 1997-1 Certificates and the Receivables
Purchase Agreement.
"REQUIRED CLASS B OWNERS" shall mean, at any time, Class B Owners
having Percentage Interests aggregating greater than 66-2/3%.
"REQUIRED CLASS B PURCHASERS" shall mean, at any time, Committed
Class B Purchasers having Commitments aggregating greater than 66-2/3% of the
aggregate Commitments of all Committed Class B Purchasers.
"REQUIREMENT OF LAW" shall mean, as to any Person, any law,
treaty, rule or regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to which
such Person is subject, whether federal, state or local (including usury laws,
the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board
of Governors of the Federal Reserve System).
"RISK RATE" shall mean, for any day, a rate per annum equal to
the sum of (i) the CSFB Corporate Base Rate in effect for such day, plus (ii)
2.00%.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SENIOR CERTIFICATES" has the meaning specified in the recitals
to this Agreement
"SERIES 1997-1 CERTIFICATES" has the meaning specified in the
recitals to this Agreement.
"SRI" has the meaning specified in the preamble to this Agreement
and, as used herein (except to the extent that the context otherwise requires),
shall mean SRI in its individual capacity (including its capacity as
Originator).
"STAGE" shall mean Stage Stores, Inc., a Delaware corporation
which is the parent of SRI.
"STRUCTURED PURCHASER" shall mean any Class B Purchaser which is
a special purpose corporation, the principal business of which consists of
issuing commercial paper, medium term notes or other securities to fund its
acquisition and maintenance of receivables, accounts, instruments, chattel
paper, general intangibles and other similar assets or interests therein, and
which is identified as a Structured Purchaser in the Joinder Agreement or
Transfer Supplement by which such Committed Class B Purchaser became a party to
this Agreement.
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"SUPPLEMENT" has the meaning specified in the recitals to this
Agreement.
"SUPPORT FACILITY" shall mean any liquidity or credit support
agreement with a Structured Purchaser which relates to this Agreement (including
any agreement to purchase an assignment of or participation in Class B
Certificates).
"SUPPORT PARTY" shall mean any bank or other financial
institution extending or having a commitment to extend funds to or for the
account of a Structured Purchaser (including by agreement to purchase an
assignment of or participation in Class B Certificates) under a Support
Facility. Each Liquidity Provider for a Noncommitted Class B Purchaser which is
a Structured Purchaser shall be deemed to be a Support Party for such Structured
Purchaser.
"TAXES" has the meaning specified in subsection 2.5(a) of this
Agreement.
"TERMINATION DATE" shall mean, (a) with respect to a Committed
Class B Purchaser, the first to occur of (i) the Commitment Expiration Date of
such Committed Class B Purchaser, or (ii) the Amortization Period Commencement
Date, and (b) with respect to a Noncommitted Class B Purchaser, the first to
occur of (i) the latest Commitment Expiration Date of its Liquidity Providers,
or (ii) the Amortization Period Commencement Date.
"TERMINATION EVENT" shall mean the occurrence of a Trust Pay Out
Event, a Series 1997-1 Pay Out Event or a Servicer Default, or the occurrence of
an event or condition which would be a Trust Pay Out Event, a Series 1997-1 Pay
Out Event or a Servicer Default but for a waiver of or failure to declare or
determine such event by the Certificateholders or the Trustee.
"TRANSFER" has the meaning specified in subsection 8.1(c) of this
Agreement.
"TRANSFEREE" has the meaning specified in subsection 8.1(c) of
this Agreement.
"TRANSFER SUPPLEMENT" has the meaning specified in subsection
8.1(e) of this Agreement.
"TRUST" has the meaning specified in the recitals to this
Agreement.
"TRUSTEE" has the meaning specified in the recitals to this
Agreement.
"UTILIZATION FEE" shall mean the ongoing utilization fees, if
any, payable to the Class B Agent or the Class B Purchasers in the amounts and
on the dates set forth in the Class B Fee Letter.
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"WRITTEN" or "IN WRITING" (and other variations thereof) shall
mean any form of written communication or a communication by means of telex,
telecopier device, telegraph or cable.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 PURCHASES. (a) On and subject to the terms and conditions of
this Agreement, (i) each Noncommitted Class B Purchaser which is a party hereto
on the Closing Date may purchase its Noncommitted Purchaser Percentage of the
Class B Certificates on the Closing Date for a purchase price equal to its
Noncommitted Purchaser Percentage of the Class B Initial Invested Amount, (ii)
each Liquidity Provider which is a party hereto on the Closing Date, severally,
agrees to acquire its respective Liquidity Percentage of the Class B
Certificates not so acquired by its related Noncommitted Class B Purchaser on
the Closing Date, and (iii) each Committed Class B Purchaser which is a party
hereto on the Closing Date, severally, agrees to purchase its Committed
Purchaser Percentage of the Class B Certificates, in each case for a purchase
price equal to the portion of the Class B Initial Invested Amount represented
thereby on the Closing Date. Such purchase price shall be made available to the
Transferor, subject to the satisfaction of the conditions specified in Section
3.1 hereof, at or prior to 11:00 a.m. New York City time on the Closing Date, by
deposit of immediately available funds to an account of the Transferor specified
in writing by the Transferor to the Class B Agent. The Class B Purchasers hereby
direct that the Class B Certificates be registered in the name of the Class B
Agent, as nominee on behalf of the Class B Purchasers from time to time
hereunder.
(b) On and subject to the terms and conditions of this Agreement
and prior to its respective Termination Date, (i) each Noncommitted Class B
Purchaser may purchase its Noncommitted Purchaser Percentage of any Additional
Class B Invested Amount offered for purchase pursuant to Section 6.15 of the
Pooling and Servicing Agreement, (ii) each Liquidity Provider, severally, agrees
to acquire its respective Liquidity Percentage of the Class B Certificates not
so acquired by its related Noncommitted Class B Purchaser, and (iii) each
Committed Class B Purchaser, severally, agrees to purchase its Committed
Purchaser Percentage of the Additional Class B Invested Amount so offered for
purchase, in each case for a purchase price equal to the Additional Class B
Invested Amount so purchased; PROVIDED that in no event shall a Committed Class
B Purchaser be required on any date to purchase an Additional Class B Invested
Amount exceeding its aggregate Available Commitment, determined prior to giving
effect to such purchase. Such purchase price shall be made available to the
Transferor, subject to the satisfaction of the conditions specified in Section
3.2 hereof, at or prior to 11:00 a.m. New York City time on the applicable
Purchase Date by deposit of immediately available funds to an account or
accounts specified in writing by the Transferor to the Class B Agent.
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(c) The purchase of the Class B Initial Invested Amount shall be
made on prior notice from the Transferor to the Class B Agent received by the
Class B Agent not later than 9:00 a.m. New York City time on the Closing Date,
and each purchase of any Additional Class B Invested Amount on the applicable
Purchase Date shall be made on prior notice from the Transferor received by the
Class B Agent not later than 2:00 p.m. New York City time on the Business Day
immediately preceding such Purchase Date. Each such notice shall be irrevocable
and shall specify (i) the aggregate Class B Initial Invested Amount or
Additional Class B Invested Amount to be purchased, (ii) the applicable Purchase
Date (which shall be a Business Day), and (iii) instructions as to the deposit
of the proceeds of the purchase. The Class B Agent shall promptly forward a copy
of such notice to each Class B Purchaser. Each Noncommitted Class B Purchaser
shall notify the Class B Agent by 9:30 a.m., New York City time, on the
applicable Purchase Date whether it has determined to make the purchase offered
to it pursuant to subsection 2.1(a) or 2.1(b), as applicable. In the event that
a Noncommitted Class B Purchaser shall not have timely provided such notice such
Noncommitted Class B Purchaser shall be deemed to have determined not to make
such purchase. The Class B Agent shall notify the Transferor, the Servicer and
each Liquidity Provider for such Noncommitted Class B Purchaser on or prior to
10:00 a.m., New York City time, on the applicable Purchase Date of whether such
Noncommitted Class B Purchaser has so determined to purchase its share of the
Class B Initial Invested Amount or the Additional Class B Invested Amount, as
the case may be, and, in the event that Noncommitted Class B Purchasers have not
determined to purchase its entire share of the Class B Initial Invested Amount
or Additional Class B Invested Amount, as the case may be, the Class B Agent
shall specify in such notice (i) the portion of the Class B Initial Invested
Amount or the Additional Class B Invested Amount, as the case may be, to be
purchased by each Liquidity Provider, (ii) the applicable Purchase Date (which
shall be a Business Day), and (iii) instructions as to the deposit of the
proceeds of the purchase. The Class B Agent shall notify the Transferor, the
Servicer, the Trustee and each Class B Purchaser on the Closing Date (in the
case of the purchase of the Class B Initial Invested Amount) or not later than
the Business Day following the applicable Purchase Date (in the case of any
purchases of Additional Class B Invested Amounts) of the identity of each Class
B Purchaser which purchased any portion of the Class B Initial Invested Amount
or any Additional Class B Invested Amount on such day, whether such Class B
Purchaser was a Noncommitted Class B Purchaser or a Committed Class B Purchaser
and the portion of the Class B Initial Invested Amount or Additional Class B
Invested Amount purchased by such Class B Purchaser.
(d) In no event may any Additional Class B Invested Amount be
offered for purchase hereunder or under Section 6.15 of the Pooling and
Servicing Agreement, nor shall any Committed Class B Purchaser be obligated to
purchase any Additional Class B Invested Amount, to the extent that such
Additional Class B Invested Amount would exceed the aggregate Available
Commitments.
(e) The Class B Certificates shall be paid as provided in the
Pooling and Servicing Agreement, and the Class B Agent shall allocate to the
Class B Owners each payment in respect of the Class B Certificates received by
the Class B Agent in its capacity as Class B Certificateholder as provided
therein. Except as otherwise provided in the Pooling and Servicing Agreement,
payments in reduction of the Class B Principal Balance shall be applied (i)
prior to the Amortization Period Commencement Date, first to Class B Owners
which are Committed Class B Purchasers, pro rata based on their respective
Percentage Interests of the Class B Principal Balance, and the remainder, if
any, to Class B Owners which are Noncommitted Class B Purchasers, pro rata based
on their respective Percentage Interests of the Class B Principal Balance, and
(ii) from and after the Amortization Period Commencement Date, to Class B Owners
pro rata based on their respective Percentage Interests of the Class B Principal
Balance, or in any such case in such other proportions as each affected Class B
Purchsaer may agree upon in writing from time to time with the Facility Agent,
the Class B Agent, SRPC and SRI.
-9-
2.2 REDUCTIONS, INCREASES AND EXTENSIONS OF COMMITMENTS. (a) At
any time the Transferor may, upon at least 10 Business Days' prior written
notice to the Class B Agent, reduce the aggregate Commitments. Each such partial
reduction shall be in an aggregate amount of $5,000,000 or integral multiples
thereof (or such other amount requested by the Transferor to which the Class B
Agent consents). Reductions of the aggregate Commitments pursuant to this
subsection 2.2(a) shall be allocated (i) to the Commitment of each Committed
Class B Purchaser, other than a Commitment held as a Liquidity Provider, PRO
RATA based on the Commitment Percentage represented by such Commitment, and (ii)
to the aggregate Commitments of Liquidity Providers for each Noncommitted Class
B Purchaser PRO RATA based on the Noncommitted Purchaser Percentage of such
Noncommitted Class B Purchaser, and the portion of such reduction which is so
allocated to the aggregate Commitments of Liquidity Providers for a Noncommitted
Class B Purchaser shall be allocated to the Commitment of each such Liquidity
Provider PRO RATA based on its respective Liquidity Percentage.
(b) On the Termination Date for a Committed Class B Purchaser,
the Commitment of such Committed Class B Purchaser shall be automatically
reduced to zero.
(c) The aggregate Commitments of the Committed Class B Purchasers
may be increased from time to time through the increase of the Commitment of one
or more Committed Class B Purchasers; PROVIDED, HOWEVER, that no such increase
shall have become effective unless (i) the Class B Agent and the Transferor
shall have given their written consent thereto, (ii) such increasing Committed
Class B Purchaser shall have entered into an appropriate amendment or supplement
to this Agreement (or its Joinder Supplement or Transfer Supplement) reflecting
such increased Commitment and (iii) such conditions, if any, as the Class B
Agent shall have required in connection with its consent (including the delivery
of legal opinions with respect to such Committed Class B Purchaser, the
agreement of such Committed Class B Purchaser to become a Liquidity Provider for
one or more Structured Purchasers hereunder and approvals from the Rating
Agency) shall have been satisfied. The Transferor may also increase the
aggregate Commitments of the Committed Class B Purchasers from time to time by
adding additional Committed Class B Purchasers in accordance with subsection
2.2(d).
(d) Subject to the provisions of subsections 8.1(a) and 8.1(b)
applicable to initial purchasers of Class B Certificates, any Person may from
time to time with the consent of the Class B Agent and the Transferor become a
party to this Agreement as an initial or an additional Noncommitted Class B
Purchaser or an initial or an additional Committed Class B Purchaser by (i)
delivering to the Transferor an Investment Letter and (ii) entering into an
agreement substantially in the form attached hereto as EXHIBIT B hereto (a
"JOINDER SUPPLEMENT"), with the Class B Agent and the Transferor, acknowledged
by the Servicer, which shall specify (A) the name and address of such Person for
purposes of Section 9.2 hereof, (B) whether such Person will be a Noncommitted
Class B Purchaser or Committed Class B Purchaser and, if such Person will be a
Committed Class B Purchaser, its Commitment and Commitment Expiration Date, (C)
if such Person is a Noncommitted Class B Purchaser, the identity of its
Liquidity Providers and their respective Liquidity Percentages, (D) if such
Person is a Liquidity Provider, the Noncommitted Class B Purchaser for which it
is acting as such and the portion of such Person's Commitment which is held by
it in its capacity as Liquidity Provider, and (E) the other information provided
for in such form of Joinder Supplement. Upon its receipt of a duly executed
Joinder Supplement, the Class B Agent shall on the effective date determined
pursuant thereto give notice of such effectiveness to the Transferor, the
Servicer and the Trustee, and the Servicer will provide notice thereof to each
Rating Agency (if required). If, at the time the effectiveness of the Joinder
Supplement for an additional Committed Class B Purchaser (other than solely as a
Liquidity Provider), the other Class B Purchasers are Class B Owners, it shall
be a condition to such effectiveness that such additional Committed Class B
Purchaser purchase from each other Class B Purchaser an interest in the Class B
Certificates in an amount equal to (i) such other Class B Purchaser's Percentage
Interest of the Class B Principal Balance, times (ii) a fraction, the numerator
of which equals the Commitment of such additional Class B Purchaser (excluding
any portion thereof held by such Committed Class B Purchaser as a Liquidity
Provider), and the denominator of which equals the aggregate Commitments of the
Class B Purchasers (determined after giving effect to the additional Commitment
of the additional Class B Purchaser as set forth in such Joinder Supplement),
for a purchase price equal to the portion of the Class B Principal Balance
purchased.
-10-
(e) So long as no Termination Event has occurred and is
continuing, no more than 120 and no less than 90 days prior to the applicable
Commitment Expiration Date, the Transferor may request, through the Class B
Agent, that each Committed Class B Purchaser extend its Commitment Expiration
Date to the date which is 364 days after the Commitment Expiration Date then in
effect, which decision will be made by each Committed Class B Purchaser in its
sole discretion. Upon receipt of any such request, the Class B Agent shall
promptly notify each Committed Class B Purchaser thereof. At least 60 but not
more than 75 days prior to the applicable Commitment Expiration Date, each
Committed Class B Purchaser shall notify the Class B Agent of its willingness or
refusal to so extend its Commitment Expiration Date, and the Class B Agent shall
notify the Transferor of such willingness or refusal by the Committed Class B
Purchasers on such 60th day (such day, the "EXTENSION NOTICE DEADLINE"). Any
Committed Class B Purchaser which notifies the Class B Agent of its refusal to
extend or which does not expressly notify the Class B Agent that it is willing
to extend its Commitment Expiration Date by the applicable Extension Notice
Deadline shall be deemed to be (x) a Nonextending Class B Purchaser after its
Commitment Expiration Date and (y) a "DISSENTING PURCHASER" from the date of its
refusal notice or such 60th day (as applicable) through its Commitment
Expiration Date. The approval of the Class B Agent shall be required to extend
the Commitment Expiration Date of each of the consenting Committed Class B
Purchasers, such extension to be effective as of the applicable Commitment
Expiration Date so long as a Termination Event shall not have occurred on or
prior to such date.
(f) Promptly after the Extension Notice Deadline, the Class B
Agent shall promptly notify each other Class B Purchaser, the Transferor and the
Servicer of the identity of any Dissenting Purchaser and the amount of its
Commitment. Either the Class B Agent or the Transferor, with the consent of the
Class B Agent and, if the Dissenting Purchaser is a Liquidity Provider, each
affected Structured Purchaser, may (but neither shall be required to) request
one or more other Class B Purchasers, or seek another financial institution
acceptable to the Class B Agent in its reasonable discretion, and, if the
Dissenting Purchaser is a Liquidity Provider, each affected Structured Purchaser
in its sole discretion, to acquire all or a portion of the Commitment of the
Dissenting Purchaser and all amounts payable to it hereunder and under the
Pooling and Servicing Agreement in accordance with Section 8.1. Each Dissenting
Purchaser hereby agrees to assign all or a portion of its Commitment and the
amounts payable to it hereunder and under the Pooling and Servicing Agreement to
a replacement investor identified by the Class B Agent in accordance with the
preceding sentence, subject to ratable payment such Dissenting Purchaser's
Percentage Interest of the Class B Principal Balance, together with all accrued
and unpaid interest thereon, and a ratable portion of all fees and other amounts
due to it hereunder.
-11-
2.3 FEES, EXPENSES, PAYMENTS, ETC. (a) SRPC agrees to pay to the
Class B Agent for the account of the Class B Purchasers the Class B Facility
Fee, the Utilization Fee and other amounts set forth in the Class B Fee Letter
at the times specified therein.
(b) SRPC further agrees to pay within 30 days following receipt
of an invoice therefor to the Class B Agent, the Facility Agent and the initial
Class B Purchasers all reasonable costs and expenses in connection with the
preparation, execution, delivery, initial syndication, administration (including
any requested amendments, waivers or consents of any of the Related Documents)
of this Agreement and each related Support Facility, and the other documents to
be delivered hereunder or in connection herewith, including the reasonable fees
and out-of-pocket expenses of counsel for the Class B Agent, the Facility Agent
and each of the initial Class B Purchasers with respect thereto.
(c) SRI agrees to pay to the Class B Agent, the Facility Agent
and each Class B Purchaser, promptly following presentation of an invoice
therefor, all reasonable costs and expenses (including reasonable fees and
expenses of counsel), if any, in connection with the enforcement of any of the
Related Documents, and the other documents delivered thereunder or in connection
therewith.
(d) SRI further agrees to pay on demand any and all stamp,
transfer and other taxes (other than Taxes covered by Section 2.5) and
governmental fees payable in connection with the execution, delivery, filing and
recording of any of the Related Documents and each related Support Facility or
the other documents and agreements to be delivered hereunder and thereunder or
otherwise in connection with the issuance of Series 1997-1, and agrees to save
each Class B Purchaser and the Class B Agent and the Facility Agent harmless
from and against any liabilities with respect to or resulting from any delay in
paying or any omission to pay such taxes and fees.
-12-
(e) Periodic fees or other periodic amounts payable hereunder
shall be calculated, unless otherwise specified in the Class B Fee Letter, on
the basis of a 360-day year and for the actual days elapsed.
(f) All payments to be made hereunder or under the Supplement,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:30 p.m., New York
City time, on the due date thereof to the Class B Agent's account specified in
subsection 9.2(b) hereof, in United States dollars and in immediately available
funds. Payments received by the Class B Agent after 2:30 p.m. New York City time
shall be deemed to have been made on the next Business Day. Notwithstanding
anything herein to the contrary, if any payment due hereunder becomes due and
payable on a day other than a Business Day, the payment date thereof shall be
extended to the next succeeding Business Day and interest shall accrue thereon
at the applicable rate during such extension. To the extent that (i) the
Trustee, SRPC, SRI, the Transferor or the Servicer makes a payment to the Class
B Agent, the Facility Agent or a Class B Purchaser or (ii) the Class B Agent,
the Facility Agent or a Class B Purchaser receives or is deemed to have received
any payment or proceeds for application to an obligation, which payment or
proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy or insolvency law, state or
Federal law, common law, or for equitable cause, then, to the extent such
payment or proceeds are set aside, the obligation or part thereof intended to be
satisfied shall be revived and continue in full force and effect, as if such
payment or proceeds had not been received or deemed received by the Class B
Agent, the Facility Agent or the Class B Purchaser, as the case may be.
(g) The obligations of SRPC under this Section 2.3 are subject to
subsection 9.11(a) hereof.
2.4 REQUIREMENTS OF LAW. (a) In the event that any Class B
Purchaser shall have reasonably determined that any Regulatory Change shall:
(i) subject such Class B Purchaser to any tax of any kind
whatsoever with respect to this Agreement, its Commitment or its
beneficial interest in the Class B Certificates, or change the basis of
taxation of payments in respect thereof (except for Taxes covered by
Section 2.5 and taxes included in the definition of Excluded Taxes in
subsection 2.5(a) and changes in the rate of tax on the overall net
income of such Class B Purchaser); or
(ii) impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, such Class B Purchaser;
and the result of any of the foregoing is to increase the cost to such Class B
Purchaser, by an amount which such Class B Purchaser deems to be material, of
maintaining its Commitment or its interest in the Class B Certificates or to
reduce any amount receivable in respect thereof, THEN, in any such case, after
submission by such Class B Purchaser to the Class B Agent of a written request
therefor and the submission by the Class B Agent to the Transferor and the
Servicer of such written request therefor, the Transferor (subject to subsection
9.11(a) hereof) shall pay to the Class B Agent for the account of such Class B
Purchaser any additional amounts necessary to compensate such Class B Purchaser
for such increased cost or reduced amount receivable, together with interest on
each such amount from the Distribution Date following receipt by the Transferor
of such request for compensation under this subsection 2.4(a), if such request
is received by the Transferor at least five Business Days prior to the
Determination Date related to such Distribution Date, and otherwise from the
following Distribution Date, until payment in full thereof (after as well as
before judgment) at the Risk Rate in effect from time to time.
-13-
(b) In the event that any Class B Purchaser shall have determined
that any Regulatory Change regarding capital adequacy has the effect of reducing
the rate of return on such Class B Purchaser's capital or on the capital of any
corporation controlling such Class B Purchaser as a consequence of its
obligations hereunder or its maintenance of its Commitment or its interest in
the Class B Certificates to a level below that which such Class B Purchaser or
such corporation could have achieved but for such Regulatory Change (taking into
consideration such Class B Purchaser's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Class B Purchaser to be
material, THEN, from time to time, after submission by such Class B Purchaser to
the Class B Agent of a written request therefor and submission by the Class B
Agent to the Transferor and the Servicer of such written request therefor, the
Transferor (subject to subsection 9.11(a) hereof) shall pay to the Class B Agent
for the account of such Class B Purchaser such additional amount or amounts as
will compensate such Class B Purchaser for such reduction, together with
interest on each such amount from the Distribution Date following receipt by the
Transferor of such request for compensation under this subsection 2.4(b), if
such request is received by the Transferor at least five Business Days prior to
the Determination Date related to such Distribution Date, and otherwise from the
following Distribution Date, until payment in full thereof (after as well as
before judgment) at the Risk Rate in effect from time to time.
(c) Each Class B Purchaser agrees that it shall use its
reasonable efforts to reduce or eliminate any claim for compensation pursuant to
subsections 2.4(a) and 2.4(b), including but not limited to designating a
different Investing Office for its Class B Certificates (or any interest
therein) if such designation will avoid the need for, or reduce the amount of,
any increased amounts referred to in subsection 2.4(a) or 2.4(b) and will not,
in the reasonable opinion of such Class B Purchaser, be unlawful or otherwise
disadvantageous to such Class B Purchaser or inconsistent with its policies or
result in an unreimbursed cost or expense to such Class B Purchaser or in an
increase in the aggregate amount payable under both subsections 2.4(a) and
2.4(b).
(d) Each Class B Purchaser claiming increased amounts described
in subsection 2.4(a) or 2.4(b) will furnish to the Class B Agent (together with
its request for compensation) a certificate prepared in good faith setting forth
the basis and the calculation of the amount (in reasonable detail) of each
request by such Class B Purchaser for any such increased amounts referred to in
subsection 2.4(a) or 2.4(b). Any such certificate shall be conclusive absent
manifest error, and the Class B Agent shall deliver a copy thereof to the
Transferor and the Servicer. Failure on the part of any Class B Purchaser to
demand compensation for any amount pursuant to subsection 2.4(a) or 2.4(b) with
respect to any period shall not constitute a waiver of such Class B Purchaser's
right to demand compensation with respect to such period.
2.5 TAXES. (a) All payments made to the Class B Purchasers, the
Facility Agent or the Class B Agent under this Agreement and the Pooling and
Servicing Agreement (including all amounts payable with respect to the Class B
Certificates) shall, to the extent allowed by law, be made free and clear of,
and without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority (collectively, "TAXES"), excluding (i)
income taxes (including branch profit taxes, minimum taxes and taxes computed
under alternative methods, at least one of which is based on or measured by net
income), franchise taxes (imposed in lieu of income taxes), or any other taxes
based on or measured by the net income of the Class B Purchaser, the Facility
Agent or the Class B Agent (as the case may be) or the gross receipts or income
of the Class B Purchaser, the Facility Agent or the Class B Agent (as the case
may be); (ii) any Taxes that would not have been imposed but for the failure of
such Class B Purchaser, the Facility Agent or the Class B Agent, as applicable,
to provide and keep current (to the extent legally able) any certification or
other documentation required to qualify for an exemption from, or reduced rate
of, any such Taxes or required by this Agreement to be furnished by such Class B
Purchaser, the Facility Agent or the Class B Agent, as applicable; and (iii) any
Taxes imposed as a result of a change by any Class B Purchaser of the Investing
Office (other than changes mandated by this Agreement, including subsection
2.4(c) hereof, or required by law) (all such excluded taxes being hereinafter
called "EXCLUDED TAXES"). If any Taxes, other than Excluded Taxes, are required
to be withheld from any amounts payable to a Class B Purchaser, the Facility
Agent or the Class B Agent hereunder or under the Pooling and Servicing
Agreement, THEN after submission by any Class B Purchaser to the Class B Agent
(in the case of an amount payable to a Class B Purchaser) and by the Facility
Agent or the Class B Agent to the Transferor and the Servicer of a written
request therefor, the amounts so payable to such Class B Purchaser, the Facility
Agent or the Class B Agent, as applicable, shall be increased and the Transferor
shall be liable to pay to the Class B Agent for the account of the Facility
Agent or such Class B Purchaser or for its own account, as applicable, the
amount of such increase) to the extent necessary to yield to such Class B
Purchaser, the Facility Agent or the Class B Agent, as applicable (after payment
of all such Taxes) interest or any such other amounts payable hereunder or
thereunder at the rates or in the amounts specified in this Agreement and the
Pooling and Servicing Agreement; PROVIDED, HOWEVER, that the amounts so payable
to such Class B Purchaser, the Facility Agent or the Class B Agent shall not be
increased pursuant to this subsection 2.5(a) if such requirement to withhold
results from the failure of such Person to comply with subsection 2.5(c) hereof.
Whenever any Taxes are payable on or with respect to amounts distributed to a
Class B Purchaser, the Facility Agent or the Class B Agent, as promptly as
possible thereafter the Servicer shall send to the Class B Agent, on behalf of
such Class B Purchaser (if applicable), a certified copy of an original official
receipt showing payment thereof. If the Trustee, upon the direction of the
Servicer, fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Class B Agent, on behalf of itself or the Facility Agent
or such Class B Purchaser (as applicable), the required receipts or other
required documentary evidence, subject to subsection 9.11(a), the Transferor
shall pay to the Class B Agent on behalf of such Class B Purchaser or the
Facility Agent or for its own account, as applicable, any incremental taxes,
interest or penalties that may become payable by such Class B Purchaser, the
Facility Agent or the Class B Agent, as applicable, as a result of any such
failure.
-14-
(b) A Class B Purchaser or the Facility Agent claiming increased
amounts under subsection 2.5(a) for Taxes paid or payable by such Class B
Purchaser or the Facility Agent, as applicable, will furnish to the Class B
Agent a certificate prepared in good faith setting forth the basis and amount of
each request by such Class B Purchaser or the Facility Agent, as applicable, for
such Taxes, and the Class B Agent shall deliver a copy thereof to the Transferor
and the Servicer. The Class B Agent claiming increased amounts under subsection
2.5(a) for its own account for Taxes paid or payable by the Class B Agent will
furnish to the Transferor and the Servicer a certificate prepared in good faith
setting forth the basis and amount of each request by the Class B Agent for such
Taxes. Any such certificate of a Class B Purchaser, the Facility Agent or the
Class B Agent shall be conclusive absent manifest error. Failure on the part of
any Class B Purchaser, the Facility Agent or the Class B Agent to demand
additional amounts pursuant to subsection 2.5(a) with respect to any period
shall not constitute a waiver of the right of such Class B Purchaser, the
Facility Agent or the Class B Agent, as the case may be, to demand compensation
with respect to such period. All such amounts shall be due and payable to the
Class B Agent on behalf of the Facility Agent or such Class B Purchaser or for
its own account, as the case may be, on the Distribution Date following receipt
by the Transferor of such certificate, if such certificate is received by the
Transferor at least five Business Days prior to the Determination Date related
to such Distribution Date and otherwise shall be due and payable on the
following Distribution Date (or, if earlier, on the Series 1997-1 Termination
Date).
-15-
(c) Each Class B Purchaser and each Participant holding an
interest in Class B Certificates agrees that prior to the date on which the
first interest or fee payment hereunder is due thereto, it will deliver to the
Transferor, the Servicer, the Trustee and the Class B Agent (i) if such Class B
Purchaser or Participant is not incorporated under the laws of the United States
or any State thereof, two duly completed copies of the U.S. Internal Revenue
Service Form 4224 or successor applicable forms required to evidence that the
Class B Purchaser's or Participant's income from this Agreement or the Class B
Certificates is "effectively connected" with the conduct of a trade or business
in the United States, and (ii) a duly completed U.S. Internal Revenue Service
Form W-8 or W-9 or successor applicable or required forms. Each Class B
Purchaser or Participant holding an interest in Class B Certificates also agrees
to deliver to the Transferor, the Servicer, the Trustee and the Class B Agent
two further copies of such Form 4224 and Form W-8 or W-9, or such successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it hereunder, and such extensions or renewals thereof as may
reasonably be requested by the Servicer or the Class B Agent, unless in any such
case, solely as a result of a change in treaty, law or regulation occurring
prior to the date on which any such delivery would otherwise be required, and
assuming that Section 1446 of the Code does not apply, the Class B Purchaser is
no longer eligible to deliver the then-applicable form set forth above and so
advises the Servicer and the Class B Agent. Each Class B Purchaser which is a
party to a Joinder Supplement certifies, represents and warrants as of the
effective date of such Joinder Supplement, each Assignee and each Participant
(in either case other than a Support Party) shall certify, represent and warrant
as a condition of acquiring its Assignment or Participation as of the effect
date of the Transfer Supplement to which it is a party or of such Participation,
as the case may be, and each Support Party shall certify, represent and warrant
as of the effective date of its becoming a Support Party, that (x) in the case
of Form 4224 (if applicable), its income from this Agreement or the Class B
Certificates is effectively connected with a United States trade or business and
(y) that it is entitled to an exemption from United States backup withholding
tax. Further, each Class B Purchaser and each Participant acquiring an interest
in a Class B Certificate covenants that for so long as it shall own Class B
Certificates or such Participation, such Class B Certificates or Participation
shall be held in such manner that the income therefrom shall be effectively
connected with the conduct of a United States trade or business.
-16-
2.6 INDEMNIFICATION. (a) SRI and SRPC (each such Person being
referred to as an "INDEMNITOR"), jointly and severally, agree to indemnify and
hold harmless the Class B Agent, the Facility Agent and each Class B Purchaser
and any directors, officers, employees, agents, attorneys, auditors or
accountants of the Class B Agent, the Facility Agent or Class B Purchaser (each
such Person being referred to as an "INDEMNITEE") from and against any and all
claims, damages, losses, liabilities, costs or expenses whatsoever (including
reasonable fees and expenses of legal counsel) which such Indemnitee may incur
(or which may be claimed against such Indemnitee) arising out of, by reason of
or in connection with the execution and delivery of, or payment or other
performance under, or the failure to make payments or perform under, any Related
Document or the issuance of the Series 1997-1 Certificates (including in
connection with the preparation for defense of any investigation, litigation or
proceeding arising out of, related to or in connection with such execution,
delivery, payment, performance or issuance), except (i) to the extent that any
such claim, damage, loss, liability, cost or expense is shall be caused by the
willful misconduct, bad faith, recklessness or gross negligence of such
Indemnitee, (ii) to the extent that any such claim, damage, loss, liability,
cost or expense is covered by subsection 2.3(c) or Section 2.4 or 2.5 hereof or
relates to any Excluded Taxes, (iii) to the extent that any such claim, damage,
loss, liability, cost or expense relates to disclosure made by the Class B Agent
or a Class B Purchaser in connection with an Assignment or Participation
pursuant to Section 8.1 of this Agreement which disclosure is not based on
information given to the Class B Agent or such Class B Purchaser by or on behalf
of SRPC, SRI, the Transferor or the Servicer or any affiliate thereof or by or
on behalf of the Trustee or (iv) to the extent that such claim, damage, loss,
liability, cost or expense shall be caused by a charge off of Receivables. The
foregoing indemnity shall include any claims, damages, losses, liabilities,
costs or expenses to which any such Indemnitee may become subject under
Securities Act, the Securities Exchange Act of 1934, as amended, the Investment
Company Act of 1940, as amended, or other federal or state law or regulation
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact in any disclosure document relating to the Series 1997-1
Certificates or any amendments thereof or supplements thereto (other than
statements provided by the Indemnitee expressly for inclusion therein) or
arising out of, or based upon, the omission or the alleged omission to state a
material fact necessary to make the statements therein or any amendment thereof
or supplement thereto, in light of the circumstances in which they were made,
not misleading (other than with respect to statements provided by the Indemnitee
expressly for inclusion therein).
(b) Promptly after the receipt by an Indemnitee of a notice of
the commencement of any action against an Indemnitee, such Indemnitee will
notify the Agent and the Agent will, if a claim in respect thereof is to be made
against an Indemnitor pursuant to subsection 2.6(a), notify such Indemnitor in
writing of the commencement thereof; but the omission so to notify such party
will not relieve such party from any liability which it may have to such
Indemnitee pursuant to the preceding paragraph. If any such action is brought
against an Indemnitee and it notifies an Indemnitor of its commencement, such
Indemnitor will be entitled to participate in and, to the extent that it so
elects by delivering written notice to the Indemnitee promptly after receiving
notice of the commencement of the action from the Indemnitee to assume the
defense of any such action, with counsel mutually satisfactory to such
Indemnitor and each affected Indemnitee. After receipt of such notice by an
Indemnitor from an Indemnitee, such Indemnitor will not be liable to such
Indemnitee for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the
Indemnitee in connection with the defense of such action. Each Indemnitee will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of the such
Indemnitee unless (i) the employment of such counsel by such Indemnitee has been
authorized in writing by such Indemnitor, (ii) such Indemnitor shall have failed
to assume the defense and employ counsel, (iii) the named parties to any such
action or proceeding (including any impleaded parties) include both such
Indemnitee and either an Indemnitor or another person or entity that may be
entitled to indemnification from an Indemnitor (by virtue of this Section 2.6 or
otherwise) and such Indemnitee shall have been advised by counsel that there may
be one or more legal defenses available to such Indemnitee which are different
from or additional to those available to an Indemnitor or such other party or
shall otherwise have reasonably determined that the co-representation would
present such counsel with a conflict of interest (in which case the Indemnitor
will not have the right to direct the defense of such action on behalf of the
Indemnitee). In any such case, the reasonable fees, disbursements and other
charges of counsel will be at the expense of the Indemnitor; it being understood
that in no event shall the Companies be liable for the fees, disbursements and
other charges of more than two counsel (in addition to any local counsel) for
all Indemnitees in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. An Indemnitor shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, which shall not be unreasonably withheld, but if settled with the
written consent of an Indemnitor or if there shall be a final judgment for the
plaintiff in any such action, suit or proceeding, such Indemnitor agrees to
indemnify and hold harmless any Indemnitee to the extent set forth in this
letter from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgement. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of counsel are at the
expense of an Indemnitor and an Indemnitee shall have requested such Indemnitor
to reimburse such Indemnitee for such fees and expenses of counsel as incurred,
such Indemnitor agrees that it shall be liable for any settlement of any action
effected without its written consent if (i) such settlement is entered into more
than ten business days after the receipt by such Indemnitor of the aforesaid
request and (ii) such Indemnitor shall have failed to reimburse the Indemnitee
in accordance with such request for reimbursement prior to the date of such
settlement. No Indemnitor shall, without the prior written consent of an
Indemnitee, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder, if such settlement, compromise or
consent includes an admission of culpability or wrong-doing on the part of such
Indemnitee or the entry or an order, injunction or other equitable or
nonmonetary relief (including any administrative or other sanctions or
disqualifications) against such Indemnitee or if such settlement, compromise or
consent does not includes an unconditional release of such Indemnitee from all
liability arising out of such claim, action, suit or proceeding.
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(c) Subject to the limitations on liability set forth in Section
8.3 of the Pooling and Servicing Agreement, the Servicer shall indemnify and
hold harmless each Indemnitee from and against any and all claims, damages,
losses, liabilities, costs or expenses whatsoever which such Indemnitee may
incur (or which may be claimed against such Indemnitee) by reason of any acts or
omissions or alleged acts or omissions of the Servicer hereunder or with respect
to activities of the Trust or the Trustee for which the Servicer is responsible
under the Pooling and Servicing Agreement or hereunder, subject, with respect to
the obligations of the Servicer in respect of activities of the Trust or the
Trustee for which the Servicer is responsible under the Pooling and Servicing
Agreement, to the provisos set forth in Section 8.4 of the Pooling and Servicing
Agreement. Subject to Section 9.5, any Successor Servicer, by accepting its
appointment pursuant to the Pooling and Servicing Agreement, (i) shall agree to
be bound by the terms, covenants and conditions contained herein applicable to
the Servicer and to be subject to the duties and obligations of the Servicer
hereunder, (ii) as of the date of its acceptance, shall be deemed to have made
with respect to itself the representations and warranties made by the SRI in
subsections 4.2(a) through (f) (in the case of subsection 4.2(a), with
appropriate factual changes) and (iii) shall agree to indemnify and hold
harmless any Indemnitee from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable fees and expenses of
counsel) whatsoever which any such Indemnitee may incur (or which may be claimed
against such Indemnitee) by reason of any acts or omissions or alleged acts or
omissions of the Servicer hereunder or with respect to activities of the Trust
or the Trustee for which the Servicer is responsible under the Pooling and
Servicing Agreement or hereunder.
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(d) Subject to the subsection 9.11(a) hereof in the case of the
Transferor, the obligations of SRPC, SRI, the Transferor and the Servicer under
this Agreement shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement. Without
limiting the foregoing, neither the lack of validity or enforceability of, or
any modification to, any Related Document nor the existence of any claim,
setoff, defense or other right which SRPC, SRI, the Trust, the Trustee, on
behalf of the Trust, the Transferor and the Servicer may have at any time
against each other, the Class B Agent, the Facility Agent, any Class B
Purchaser, any Support Party or any other Person, whether in connection with any
Related Document or any unrelated transactions, shall constitute a defense to
such obligations.
SECTION 3. CONDITIONS PRECEDENT
3.1 CONDITION TO INITIAL PURCHASE. The following shall be
conditions precedent to the initial purchase by any Class B Purchasers of the
Class B Certificates:
(a) the representations and warranties of SRPC and SRI set forth
or referred to in Section 4.1 and 4.2 hereof shall be true and correct in all
material respects on Closing Date as though made on and as of the Closing Date,
and no event which of itself or with the giving of notice or lapse of time, or
both, would constitute a Termination Event shall have occurred and be continuing
on the Closing Date;
(b) the Supplement shall have been duly executed and delivered by
all parties thereto and shall be in form and substance satisfactory to the Class
B Purchasers;
(c) the Master Pooling and Servicing Agreement and the
Receivables Purchase Agreement shall not have been amended or otherwise
modified, other than as disclosed to the Class B Purchasers in writing prior to
the Closing Date;
(d) Class C Certificates shall have been duly issued in
accordance with the Pooling and Servicing Agreement which have a Class C Initial
Invested Amount equal to at least 17.5% of the Initial Invested Amount;
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(e) [reserved];
(f) all up front fees and expenses agreed and specified in the
Class B Fee Letter shall have been paid by SRPC on the Closing Date, and
arrangements satisfactory to the initial Class B Purchasers and the Class B
Agent shall have been made for the payment of amounts required to be paid by
SRPC pursuant to Section 2.3(b) with respect to the preparation, execution,
delivery and initial syndication of this Agreement and each related Support
Facility and the other documents to be delivered hereunder or in connection
herewith;
(g) arrangements satisfactory to the initial Class B Purchasers
and the Class B Agent shall have been made for the repayment in full of the
Series 1993-2 Investor Certificates and termination of the related certificate
purchase agreement concurrently with the initial purchase of Class B
Certificates; and
(h) the Class B Agent on behalf of the Class B Purchasers shall
have received on the Closing Date the following items, each of which shall be in
form and substance satisfactory to the Class B Agent:
(i) an Officer's Certificate of SRPC or SRI, as
applicable, confirming the satisfaction of the conditions set forth in
clause (a) and clauses (c) through (e), inclusive, above;
(ii) a copy of (A) the certificates of incorporation and
by-laws of, and an incumbency certificate with respect to its officers
executing any of the Related Documents on the Closing Date on behalf of,
part of SRPC and SRI certified by its authorized officer, (B) good
standing certificates from the appropriate Governmental Authority as of
a recent date with respect to each of SRPC and SRI and (C) resolutions
of the Board of Directors (or an authorized committee thereof) of each
of SRPC and SRI with respect to the Related Documents to which it is
party, certified by its authorized officer;
(iii) the favorable written opinions of counsel for SRPC
and SRI addressed to the Class B Agent, the Facility Agent and the Class
B Purchasers, or accompanied by a letter providing that the Class B
Agent, the Facility Agent and the Class B Purchasers may rely on such
opinions as if they were addressed to them, and dated the Closing Date,
covering general corporate matters, the due execution and delivery of,
and the enforceability of, each of the Related Documents to which SRPC
and SRI (individually or as Transferor or Servicer) is party,
sale/security interest matters, tax matters and such other matters as
the Class B Agent may request;
(iv) an agreed procedures letter from the independent
certified public accountants of SRPC and a certificate of an authorized
officer of SRPC with respect to the accuracy in all material respects of
written factual data previously furnished to the Class B Agent with
respect to the Receivables in the Trust, in each case in form and scope
satisfactory to the Class B Agent;
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(v) evidence of the due execution and delivery by the
Trustee of the Related Documents to which it is party;
(vi) an executed copy of the Supplement and a conformed
copy of the Master Pooling and Servicing Agreement and the Receivables
Purchase Agreement;
(vii) executed copies of all opinions required by Article
VI of the Pooling and Servicing Agreement or by any Rating Agency in
connection with the issuance, sale or rating of the Series 1997-1 (each
such opinion, unless otherwise agreed to by the Class B Agent, to be
addressed to the Class B Agent on behalf of the Class B Purchasers and
the Facility Agent or accompanied by a letter providing that the Class B
Agent on behalf of the Class B 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 B Agent may
reasonably request;
(viii) the duly executed Class B Certificate(s) registered
in the name of the Class B Agent as nominee on behalf of the Class B
Owners; and
(ix) evidence satisfactory to each Class B Purchaser that
is a Structured Purchaser that ▇▇▇▇▇'▇ and Standard & Poor's has
confirmed in writing that the purchase by it of Class B Certificates
(including Additional Class B Invested Amounts thereunder) would not
result in a reduction or withdrawal of such Rating Agency's then
applicable rating of the commercial paper of such Structured Purchaser,
without giving effect to any increase in any letter of credit or other
enhancement provided to such Structured Purchaser (other than liquidity
support provided to such Structured Purchaser by Liquidity Providers).
3.2 CONDITION TO ADDITIONAL PURCHASES. The following shall be
conditions precedent to each purchase by any Class B Purchasers of Additional
Class B Invested Amounts hereunder:
(a) the Transferor shall have timely delivered a notice of
purchase pursuant to subsection 2.1(c) of this Agreement;
(b) the representations and warranties of SRPC and SRI set forth
or referred to in Section 4.1 and 4.2 hereof shall be true and correct in all
material respects on the date of such purchase as though made on and as of such
date; no event which of itself or with the giving of notice or lapse of time, or
both, would constitute a Termination Event shall have occurred and be continuing
on such date, and there shall exist no unreimbursed Class C Investor
Charge-Offs;
(c) after giving effect to such purchase of Additional Class B
Invested Amount, the excess of the aggregate Class B Principal Balance over the
portion of such Class B Principal Balance owing to Nonextending Class B
Purchasers shall not exceed the aggregate Commitments of the Committed Class B
Purchasers;
(d) after giving effect to such purchase, the Class C Invested
Amount shall equal not less than the greater of (i) 17.5% of the Invested Amount
on the applicable Purchase Date and (ii) 5% of the highest Invested Amount
during the 180 days preceding such Purchase Date;
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(e) after giving effect to such purchase and the application of
the proceeds thereof as provided herein and in subsection 4.2(h) of the Pooling
and Servicing Agreement, the amount on deposit in the Spread Account, expressed
as a percentage of the Invested Amount, after giving effect to such purchase and
the application of the proceeds thereof as provided herein as in subsection
4.2(h) of the Pooling and Servicing Agreement, shall be not less than such
percentage determined prior to giving effect to such purchase and application;
(f) in the case of any Noncommitted Class B Purchaser, such
Noncommitted Class B Purchaser shall have determined in its judgment that the
Class B Certificates have a credit quality sufficient to obtain a rating of not
less than Aa2 from ▇▇▇▇▇'▇ and not less than AA by Standard & Poor's; and
(g) the conditions set forth in Section 6.15 of the Pooling and
Servicing Agreement to the issuance of such Additional Class B Invested Amount
shall have been satisfied.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF SRPC. SRPC repeats and
reaffirms to the Class B Purchasers and the Class B Agent the representations
and warranties of the Transferor set forth in Sections 2.3 of the Pooling and
Servicing Agreement, and represents and warrants that such representations and
warranties are true and correct as of the date hereof. SRPC further represents
and warrants to, and agrees with, the Class B Agent and each Class B Purchaser
that, as of the date hereof:
(a) SRPC is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and to transact the business
in which it is now engaged. SRPC is duly qualified to do business (or is exempt
from such qualification) and is in good standing in each State of the United
States where the nature of its business requires it to be so qualified.
(b) SRPC has the full corporate power, authority and legal
right to make, execute, deliver and perform the Related Documents to which it is
party (individually or as Transferor) and all of the transactions contemplated
thereby and to issue the Series 1997-1 Certificates from the Trust and has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Related Documents to which it is party and such issuance.
Each of the Related Documents to which SRPC is party (individually or as
Transferor) constitutes its legal, valid and binding agreement enforceable in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
the rights of creditors generally and except as such enforceability may be
limited by general principles of equity, whether considered in a proceeding at
law or in equity).
(c) SRPC is not required to obtain the consent of any
other party or any consent, license, approval or authorization of, or
registration with, any Governmental Authority in connection with the execution,
delivery or performance of each of the Related Documents to which it is party
(individually or as Transferor) that has not been duly obtained and which is not
and will not be in full force and effect on the Closing Date.
-22-
(d) SRPC's execution, delivery and performance of the
Related Documents to which it is party (individually or as Transferor) do not
violate or conflict with any provision of any existing law or regulation
applicable to SRPC or any order or decree of any court to which SRPC is subject
or the Certificate of Incorporation or Bylaws of SRPC, or any mortgage, security
agreement, indenture, contract or other agreement to which SRPC is a party or by
which SRPC or any significant portion of its properties is bound.
(e) There is no litigation, investigation or
administrative proceeding before any court, tribunal, regulatory body or
governmental body presently pending, or, to the knowledge of SRPC, threatened,
with respect to any of the Related Documents, the transactions contemplated
thereby, or the issuance of the Series 1997-1 Certificates and there is no such
litigation or proceeding against SRPC or any significant portion of its
properties which would, individually or in the aggregate, have a material
adverse effect on the transactions contemplated by any of the Related Documents
or the ability of SRPC to perform its obligations thereunder.
(f) SRPC is not insolvent or the subject of any insolvency
or liquidation proceeding. The financial statements of SRPC delivered to the
Class B Agent are complete and correct in all material respects and fairly
present the financial condition of SRPC as of date of such statements and the
results of operations of SRPC for the period then ended, all in accordance with
United States generally accepted accounting principles consistently applied.
Since the date of the most recent audited financial statements of SRPC delivered
to the Class B Agent, there has not been any material adverse change in the
condition (financial or otherwise) of SRPC.
(g) There are no outstanding comments from the most recent
report prepared by the independent public accountants for SRPC (individually or
in its capacity as Transferor) in connection with its credit card receivables.
(h) No Trust Pay Out Event, Series 1997-1 Pay Out Event,
Servicer Default or Termination Event has occurred and is continuing, and no
event, act or omission has occurred and is continuing which, with the lapse of
time, the giving of notice, or both, would constitute such an event or default.
(i) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and neither the
Trust nor SRPC is required to be registered under the Investment Company Act of
1940, as amended.
(j) The Receivables conveyed by SRPC to the Trust under
the Pooling and Servicing Agreement are in an aggregate amount, determined as of
November 29, 1997, of $290,488,508, consisting of $280,813,892 of Principal
Receivables and $9,674,616 of Finance Charge Receivables. The Receivables
Purchase Agreement is in full force and effect on the date hereof and no
material default by any party exists thereunder.
(k) The Trust is duly created and existing under the laws
of the State of New York. Simultaneous with the closing hereunder, all
conditions to the issuance and sale of the Series 1997-1 Certificates set forth
in the Pooling and Servicing Agreement have been satisfied and the Series 1997-1
Certificates have been duly issued by the Trust.
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(l) Neither SRPC nor any of its Affiliates has directly,
or through any agent, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any "security" (as defined in the Securities
Act) that is or will be integrated with the sale of the any Series 1997-1
Certificates in a manner that would require the registration under the
Securities Act of the offering of the Series 1997-1 Certificates or (ii) engaged
in any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) in connection with the offering
of the Series 1997-1 Certificates or in any manner involving a public offering
thereof within the meaning of Section 4(2) of the Securities Act. Assuming the
accuracy of the representations and warranties of each Class B Purchaser in its
Investment Letter and of each purchaser of Class A Certificates in their
respective investment letters, the offer and sale of the Series 1997-1
Certificates are transactions which are exempt from the registration
requirements of the Securities Act.
(m) All written factual information heretofore furnished
by SRPC to, or for delivery to, the Class B Agent for purposes of or in
connection with this Agreement, including information relating to the Accounts,
the Receivables, and SRI's credit card business, 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).
4.2 REPRESENTATIONS AND WARRANTIES OF SRI. SRI repeats and
reaffirms to the Class B Purchasers and the Class B Agent the representations
and warranties of the Servicer set forth in Sections 3.3 of the Pooling and
Servicing Agreement, and represents and warrants that such representations and
warranties are true and correct as of the date hereof. SRI further represents
and warrants to, and agree with, the Class B Agent and each Class B Purchaser
that, as of the date hereof:
(a) SRI is a duly organized and validly existing
corporation in good standing under the laws of the State of Texas, with
corporate power and authority to own its properties and to transact the business
in which it is now engaged. SRI is duly qualified to do business (or is exempt
from such qualification) and is in good standing in each State of the United
States where the nature of its business requires it to be so qualified.
(b) SRI has the full corporate power, authority and legal
right to make, execute, deliver and perform the Related Documents to which it is
party (individually or as Servicer) and all of the transactions contemplated
thereby and has taken all necessary corporate action to authorize the execution,
delivery and performance of the Related Documents to which it is party and such
issuance. Each of the Related Documents to which SRI is party (individually or
as Servicer) constitutes its legal, valid and binding agreement enforceable in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
the rights of creditors of national banking associations generally and except as
such enforceability may be limited by general principles of equity, whether
considered in a proceeding at law or in equity).
-24-
(c) SRI is not required to obtain the consent of any other
party or any consent, license, approval or authorization of, or registration
with, any Governmental Authority in connection with the execution, delivery or
performance of each of the Related Documents to which it is party (individually
or as Servicer) that has not been duly obtained and which is not and will not be
in full force and effect on the Closing Date.
(d) The execution, delivery and performance by SRI of the
Related Documents to which it is party (individually or as Servicer) do not
violate or conflict with any provision of any existing law or regulation
applicable to SRI or any order or decree of any court to which SRI is subject or
the Certificate of Incorporation or Bylaws of SRI, or any mortgage, security
agreement, indenture, contract or other agreement to which SRI is a party or by
which SRI or any significant portion of its properties is bound.
(e) There is no litigation, investigation or
administrative proceeding before any court, tribunal, regulatory body or
governmental body presently pending, or, to the knowledge of SRI, threatened,
with respect to any of the Related Documents, the transactions contemplated
thereby, or the issuance of the Series 1997-1 Certificates, and there is no such
litigation or proceeding against SRI or any significant portion of its
properties which would, individually or in the aggregate, have a material
adverse effect on the transactions contemplated by any of the Related Documents
or the ability of SRI to perform its obligations thereunder.
(f) SRI is not insolvent or the subject of any insolvency
or liquidation proceeding. The financial statements of SRI delivered to the
Class B Agent are complete and correct in all material respects and fairly
present the financial condition of SRI as of date of such statements and its
results of operations for the period then ended, all in accordance with United
States generally accepted accounting principles consistently applied. Since the
date of the most recent audited financial statements of SRI delivered to the
Class B Agent through the Closing Date, there has not been any material adverse
change in the condition (financial or otherwise) of SRI.
(g) There are no outstanding comments from the most recent
report prepared by the independent public accountants for SRI (individually or
in its capacity as Servicer) in connection with its credit card receivables.
(h) No Trust Pay Out Event, Series 1997-1 Pay Out Event,
Servicer Default, Termination Event has occurred and is continuing, and no
event, act or omission has occurred and is continuing which, with the lapse of
time, the giving of notice, or both, would constitute such an event or default.
(i) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and neither the
Trust, SRPC nor SRI is required to be registered under the Investment Company
Act of 1940, as amended.
(j) The Receivables Purchase Agreement is in full force
and effect on the date hereof and no material default by any party exists
thereunder.
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(k) The Trust is duly created and existing under the laws
of the State of New York. Simultaneous with the closing hereunder, all
conditions to the issuance and sale of the Series 1997-1 Certificates set forth
in the Pooling and Servicing Agreement have been satisfied and the Series 1997-1
Certificates have been duly issued by the Trust.
(l) To the knowledge of SRI, the representations and
warranties of SRPC set forth in Section 4.1 above are true and correct in all
material respects.
(m) All written factual information heretofore furnished
by SRPC, SRI or Stage to, or for delivery to, the Class B 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 or SRI, 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).
4.3 REPRESENTATIONS AND WARRANTIES OF THE CLASS B AGENT, THE
FACILITY AGENT AND THE CLASS B PURCHASERS. Each of the Class B Agent, the
Facility Agent and the Class B Purchasers severally (each with respect to itself
only) represents and warrants to, and agrees with, the Transferor and the
Servicer, that:
(a) It is duly authorized to enter into and perform this
Agreement and, in the case of the Class B Purchasers, to purchase its Commitment
Percentage (if any) of the Class B Certificates, and has duly executed and
delivered this Agreement; and the person signing this Agreement on behalf of the
Class B Agent, the Facility Agent or such Class B Purchaser, as the case may be,
has been duly authorized to do so.
(b) This Agreement constitutes the legal, valid and
binding obligation of the Class B Agent, the Facility Agent or such Class B
Purchaser, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, conservatorship or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general,
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(c) No registration with or consent or approval of or
other action by any state or local governmental authority or regulatory body
having jurisdiction over the Class B Agent, the Facility Agent or such Class B
Purchaser is required in connection with its execution, delivery or performance
of this Agreement, other than as may be required under the blue sky laws of any
state.
(d) The execution, delivery or performance by the Class B
Agent, the Facility Agent or such Class B Purchaser of this Agreement do not
violate or conflict with any provision of any existing law or regulation
applicable to it or any order or decree of any court to which it is subject, its
charter or bylaws, or any mortgage, security agreement, indenture, contract or
other agreement to which such it is a party or by which it or any significant
portion of its properties is bound, in any such case if such violation or
conflict would have an adverse affect on its right or ability to execute,
deliver or perform its obligations under this Agreement.
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SECTION 5. COVENANTS
5.1 COVENANTS OF SRPC. SRPC (individually or, as set forth below,
as the Transferor) and SRI (individually and, as set forth below, as the
Servicer), each as to itself in such capacity or capacities, and subject to
subsection 9.11(a) in the case of the Transferor, covenants and agrees, through
the Termination Date for all Class B Purchasers and thereafter so long as any
amount of the Class B Principal Balance shall remain outstanding or any monetary
obligation arising hereunder shall remain unpaid, unless the Required Class B
Owners and the Required Class B Purchasers shall otherwise consent in writing,
that:
(a) each of SRPC, SRI, the Transferor and the Servicer
shall perform in all material respects each of the respective agreements,
warranties and indemnities applicable to it and comply in all material respects
with each of the respective terms and provisions applicable to it under the
other Related Documents to which it is party, which agreements, warranties and
indemnities are hereby incorporated by reference into this Agreement as if set
forth herein in full; and each of SRPC, SRI, the Transferor and the Servicer
shall take all reasonable action to enforce the obligations of each of the other
parties to such Related Documents which are contained therein;
(b) the Transferor and the Servicer shall furnish to the
Class B Agent (i) a copy of each opinion, certificate, report, statement, notice
or other communication (other than investment instructions) relating to the
Series 1997-1 Certificates which is furnished by or on behalf of either of them
to Certificateholders, to any Rating Agency or to the Trustee and furnish to the
Class B Agent after receipt thereof, a copy of each notice, demand or other
communication relating to the Series 1997-1 Certificates, this Agreement or the
Pooling and Servicing Agreement received by the Transferor or the Servicer from
the Trustee, any Rating Agency or 10% or more of the Series 1997-1
Certificateholders (to the extent such notice, demand or communication relates
to the Accounts, the Receivables, any Servicer Default, any Trust Pay Out Event
or any Series 1997-1 Pay Out Event); and (ii) such other information, documents
records or reports respecting the Trust, the Accounts, the Receivables, the
Transferor or the Servicer as the Class B Agent may from time to time reasonably
request without unreasonable expense to the Transferor or the Servicer;
(c) the Servicer shall furnish to the Class B Agent on or
before the date such reports are due under the Pooling and Servicing Agreement
copies of each of the reports and certificates required by subsection 3.4(c) or
Section 3.5 or 3.6 of the Pooling and Servicing Agreement;
(d) the Servicer shall promptly furnish to the Class B
Agent a copy, addressed to the Class B Agent, of each opinion of counsel
delivered to the Trustee pursuant to subsection 13.2(d) of the Pooling and
Servicing Agreement;
(e) SRI shall furnish to the Class B Agent (i) promptly
when publicly available, the annual (audited) and quarterly (unaudited)
consolidated and consolidating financial statements of each of Stage and SRPC
and such other publicly available financial information, if any, as to Stage,
SRI or SRPC as the Class B 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 or SRI;
-27-
(f) the Servicer shall furnish to the Class B Agent a
certificate concurrently with its delivery of its annual certificate pursuant to
Section 3.5 of the Pooling and Servicing Agreement stating that no Termination
Event or event or condition which with the passage of time or the giving of
notice, or both, would constitute a Termination Event has occurred or, if such a
Termination Event, event or condition has occurred, identifying the same in
reasonable detail;
(g) the Transferor shall not exercise its right to accept
optional reassignment of the Receivables or repurchase the Series 1997-1
Certificates pursuant to Section 12.2 of the Pooling and Servicing Agreement,
unless the Class B Purchasers and the Class B Agent have been paid, or will be
paid upon such repurchase or in connection with such optional reassignment, the
Class B Principal Balance, all interest thereon and all other amounts owing
hereunder in full;
(h) the Transferor and the Servicer shall at any time from
time to time during regular business hours, on reasonable notice to the
Transferor or the Servicer, as the case may be, permit the Class B Agent, or its
agents or representatives to:
(i) examine all books, records and documents (including
computer tapes and disks) in its possession or under its control
relating to the Receivables, and
(ii) visit its offices and property for the purpose of
examining such materials described in clause (i) above.
The information obtained by the Class B Agent or any Class B Purchaser pursuant
to this subsection shall be held in confidence in accordance with Section 6.2
hereof;
(i) the Transferor and the Servicer shall use reasonable
efforts to cooperate with the Class B Agent (including affording reasonable
inspection rights, assisting in the preparation of syndication material,
attending investor meetings and providing access to its officers) in its effort
to syndicate the Commitments;
(j) the Servicer shall furnish to the Class B Agent,
promptly after the occurrence of any Servicer Default, Termination Event, Trust
Pay Out Event or Series 1997-1 Pay Out Event, a certificate of an appropriate
officer of the Servicer setting forth the circumstances of such Servicer
Default, Termination Event, Trust Pay Out Event or Series 1997-1 Pay Out Event
and any action taken or proposed to be taken by the Servicer or the Transferor
with respect thereto;
(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 and the Receivables
Purchase Agreement;
(l) neither Transferor, the Servicer nor the Originator
shall terminate (except in accordance with the terms thereof), amend, waive or
otherwise modify the Master Pooling and Servicing Agreement or the Supplement,
unless (i) such amendment, waiver or modification shall not, as evidenced by an
Officer's Certificate of the Transferor delivered to the Class B Agent,
adversely affect in any material respect the interests of the Class B Agent, the
Facility Agent or the Class B Purchasers under any Related Document, and will
not result in a reduction or withdrawal of the then current rating by any Rating
Agency of any commercial paper notes issued by any Structured Purchaser without
giving effect to any increase in any letter of credit or other enhancement
provided to such Structured Purchaser; and (ii) all of the applicable provisions
of Section 13.1 of the Pooling and Servicing Agreement have been complied with;
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(m) the Transferor and the Servicer shall execute and
deliver to the Class B Agent, the Facility Agent or the Trustee all such
documents and instruments and do all such other acts and things as may be
necessary or reasonably required by the Class B Agent, the Facility Agent or the
Trustee to enable any of them to exercise and enforce their respective rights
under the Related Documents and to realize thereon, and record and file and
rerecord and refile all such documents and instruments, at such time or times,
in such manner and at such place or places, all as may be necessary or required
by the Trustee, the Facility Agent or the Class B Agent to validate, preserve,
perfect and protect the position of the Trustee under the Pooling and Servicing
Agreement;
(n) neither the Transferor nor the Servicer will
consolidate with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, except (i) in
accordance with Section 7.2 or 8.2 of the Pooling and Servicing Agreement, and
(ii) with the prior written consent of the Required Class B Owners and the
Required Class B Purchasers; PROVIDED that such consent shall not be required in
the case of the Servicer if, after giving effect to such consolidation, merger,
conveyance or transfer, the Class B Certificates are rated at least "BBB" by
Standard & Poor's or at least "Baa3" by ▇▇▇▇▇'▇ Investors Services, Inc.;
(o) SRI will not (i) resign as Servicer, unless (A) the
performance of its duties under the Pooling and Servicing Agreement is no longer
permissible pursuant to Requirements of Law and there is no reasonable action
which it could take to make the performance of such duties permissible under
such Requirements of Law, or (B) the Required Class B Owners and the Required
Class B Purchasers shall have consented thereto, or (ii) assign the Pooling and
Servicing Agreement (unless such assignment is permitted pursuant to Section 8.2
of the Pooling and Servicing Agreement and subsection 5.1(n) hereof), (iii)
delegate any of its material duties under the Pooling and Servicing Agreement
except as permitted by Section 8.7 of the Pooling and Servicing Agreement and
unless the Person to which such delegation is made is a wholly owned subsidiary
(directly or indirectly) of Stage, is legally qualified and licensed (to the
extent required) to perform the duties delegated to it, owns or holds under
valid leases or (in the case of software) licenses all computer equipment and
software and other equipment and rights which are required for such Person to
perform such duties, and employs sufficient and adequately trained personnel to
perform such duties, or (iv) appoint or permit the appointment of a Successor
Servicer other than the Trustee under the provisions of the Pooling and
Servicing Agreement without consultation with the Facility Agent; and
(p) the Transferor will not incur, permit or suffer to
exist any lien, charge or other adverse claim on any Class C Certificate.
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SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY
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 Purchasers and Class B Agent, or (iii) to the extent SRPC, SRI,
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 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 B Agent of its intention to make
any such disclosure prior to making such disclosure.
6.2 COVENANTS OF CLASS B PURCHASERS. The Class B Agent, the
Facility Agent and each Class B Purchaser, severally and with respect to itself
only, covenants and agrees that any information obtained by the Class B Agent,
the Facility Agent or such Class B Purchaser pursuant to this Agreement shall be
held in confidence (it being understood that documents provided to the Class B
Agent hereunder may in all cases be distributed by the Class B Agent or the
Facility Agent to the Class B Purchasers) except that the Class B Agent, the
Facility Agent or such Class B Purchaser may disclose such information (i) to
its officers, directors, employees, agents, counsel, accountants, auditors,
advisors or representatives, (ii) to the extent such information has become
available to the public other than as a result of a disclosure by or through the
Class B Agent, the Facility Agent or such Class B Purchaser, (iii) to the extent
such information was available to the Class B Agent, the Facility Agent or such
Class B Purchaser on a nonconfidential basis prior to its disclosure to the
Class B Agent, the Facility Agent or such Class B Purchaser hereunder, (iv) with
the consent of the Transferor, (v) to the extent permitted by Section 8.1, (vi)
to the extent the Class B Agent, the Facility Agent or such Class B Purchaser
should be (A) required in connection with any legal or regulatory proceeding or
(B) requested by any Governmental Authority to disclose such information or
(vii) in the case of any Class B Purchaser that is a Structured Purchaser, to
rating agencies, placement agents and providers of liquidity and credit support
who agree to hold such information in confidence; PROVIDED, that, in the case of
clause (vi) above, the Class B Agent, the Facility Agent or such Class B
Purchaser, as applicable, will use all reasonable efforts to maintain
confidentiality and, in the case of clause (vi)(A) above, will (unless otherwise
prohibited by law) notify the Transferor of its intention to make any such
disclosure prior to making any such disclosure.
SECTION 7. THE AGENTS
7.1 APPOINTMENT. (a) Each Class B Purchaser hereby irrevocably
designates and appoints the Class B Agent as the agent of such Class B Purchaser
under this Agreement, and each such Class B Purchaser irrevocably authorizes the
Class B Agent, as the agent for such Class B Purchaser, to take such action on
its behalf under the provisions of the Related Documents and to exercise such
powers and perform such duties thereunder as are expressly delegated to the
Class B Agent by the terms of the Related Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Class B Agent shall not have any
duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Class B Purchaser, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Class B Agent.
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(b) Each Class B Purchaser hereby irrevocably designates and
appoints the Facility Agent as the agent of such Class B Purchaser under the
Pooling and Servicing Agreement, and each such Class B Purchaser irrevocably
authorizes the Facility Agent, as the agent for such Class B Purchaser, to take
such action on its behalf under the provisions of the Pooling and Servicing
Agreement and to exercise such powers and perform such duties thereunder as are
expressly granted to the Facility Agent by the terms of the Pooling and
Servicing Agreement, subject to the terms and conditions of this Agreement,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Facility Agent shall not have any duties or responsibilities, except those
expressly set forth herein or in the Pooling and Servicing Agreement, or any
fiduciary relationship with any Class B Purchaser, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Facility Agent.
7.2 DELEGATION OF DUTIES. The Class B Agent and the Facility
Agent may execute any of its duties under any of the Related Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Neither the Class B Agent nor
the Facility Agent shall be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
7.3 EXCULPATORY PROVISIONS. Neither the Class B Agent nor the
Facility Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable to any of the Class
B Purchasers for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with any of the other Related Documents (except
for its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Class B Purchasers for any recitals,
statements, representations or warranties made by SRPC, SRI, Stage, the
Transferor, the Servicer or the Trustee or any officer thereof contained in any
of the other Related Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Class B Agent or the
Facility Agent under or in connection with, any of the other Related Documents
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any of the other Related Documents or for any
failure of SRPC, SRI, Stage, the Transferor, the Servicer or the Trustee to
perform its obligations thereunder. Neither the Class B Agent nor the Facility
Agent shall be under any obligation to any Class B Purchaser to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, any of the other Related Documents, or to inspect the
properties, books or records of SRPC, SRI, Stage, the Transferor, the Servicer,
the Trustee or the Trust.
7.4 RELIANCE BY AGENT. The Class B Agent and the Facility Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, written statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Class B Agent or the
Facility Agent), independent accountants and other experts selected by the Class
B Agent or the Facility Agent. The Class B Agent and the Facility Agent shall be
fully justified in failing or refusing to take any action under any of the
Related Documents unless it shall first receive such advice or concurrence of
the Required Class B Owners and the Required Class B Purchasers as it deems
appropriate or it shall first be indemnified to its satisfaction by the Class B
Purchasers or by the Committed Class B Purchasers against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Class B Agent and the Facility Agent shall in all
cases be fully protected in acting, or in refraining from acting, under any of
the Related Documents in accordance with a request of the Required Class B
Owners and the Required Class B Purchasers and such request and any action taken
or failure to act pursuant thereto shall be binding upon all present and future
Class B Purchasers.
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7.5 NOTICES. The Class B Agent shall not be deemed to have
knowledge or notice of the occurrence of any breach of this Agreement or the
occurrence of any Pay Out Event or any Termination Event unless the Class B
Agent has received notice from the Transferor, the Servicer, the Trustee or any
Class B Purchaser referring to this Agreement, describing such event. In the
event that the Class B Agent receives such a notice, the Class B Agent promptly
shall give notice thereof to the Class B Purchasers. The Class B Agent shall
take such action with respect to such event as shall be reasonably directed by
the Required Class B Owners and the Required Class B Purchasers; PROVIDED that
unless and until the Class B Agent shall have received such directions, the
Class B Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such event as it shall deem advisable
in the best interests of the Class B Purchasers.
7.6 NON-RELIANCE ON AGENT AND OTHER CLASS B PURCHASERS. Each
Class B Purchaser expressly acknowledges that neither the Class B Agent nor the
Facility Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Class B Agent or the Facility Agent
hereafter taken, including any review of the affairs of SRPC, SRI, Stage, the
Transferor, the Servicer, the Trustee or the Trust shall be deemed to constitute
any representation or warranty by the Class B Agent or the Facility Agent to any
Class B Purchaser. Each Class B Purchaser represents to the Class B Agent and
the Facility Agent that it has, independently and without reliance upon the
Class B Agent, the Facility Agent or any other Class B Purchaser, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Trust, the Trustee,
SRPC, SRI, Stage, the Transferor and the Servicer and made its own decision to
purchase its interest in the Class B Certificates hereunder and enter into this
Agreement. Each Class B Purchaser also represents that it will, independently
and without reliance upon the Class B Agent or the Facility Agent or any other
Class B Purchaser, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis, appraisals and
decisions in taking or not taking action under any of the Related Documents, and
to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Trust, the Trustee, SRPC, SRI, Stage, the Transferor and
the Servicer. Except, in the case of the Class B Agent, for notices, reports and
other documents received by the Class B Agent under Section 5 hereof, neither
the Class B Agent nor the Facility Agent shall have any duty or responsibility
to provide any Class B Purchaser with any credit or other information concerning
the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of the Trust, the Trustee, SRPC, SRI, Stage, the
Transferor or the Servicer which may come into the possession of the Class B
Agent or the Facility Agent or any of its respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
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7.7 INDEMNIFICATION. The Committed Class B Purchasers agree to
indemnify the Class B Agent and the Facility Agent in its capacity as such
(without limiting the obligation (if any) of SRPC, SRI, the Transferor, the
Trust or the Servicer to reimburse the Class B Agent or the Facility Agent for
any such amounts), ratably according to their respective Commitment Percentages
(or, if the Commitments have terminated, Percentage Interests), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including at any time following the payment of the obligations
under this Agreement, including the Class B Principal Balance) be imposed on,
incurred by or asserted against the Class B Agent or the Facility Agent in any
way relating to or arising out of this Agreement, or any documents contemplated
by or referred to herein or the transactions contemplated hereby or any action
taken or omitted by the Class B Agent or the Facility Agent under or in
connection with any of the foregoing; PROVIDED that no Class B Purchaser shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of the Class B Agent or the Facility Agent resulting from its own
gross negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the obligations under this Agreement, including the Class
B Principal Balance.
7.8 AGENTS IN THEIR INDIVIDUAL CAPACITIES. The Class B Agent, the
Facility Agent and their Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Trust, the Trustee, SRPC, SRI,
Stage, the Servicer and the Transferor as though the Class B Agent and the
Facility Agent were not the agents hereunder. Each Class B Purchaser
acknowledges that Credit Suisse First Boston may act (i) as administrator and
agent for one or more Structured Purchasers and in such capacity acts and may
continue to act on behalf of each such Structured Purchaser in connection with
its business, (ii) as the agent for certain financial institutions under the
liquidity and credit enhancement agreements relating to this Agreement to which
any such Structured Purchaser is party and in various other capacities relating
to the business of any such Structured Purchaser under various agreements, and
(iii) as agent for other Classes of Series 1997-1 Certificates. Credit Suisse
First Boston in its capacity as the Class B Agent or the Facility Agent shall
not, by virtue of its acting in any such other capacities, be deemed to have
duties or responsibilities hereunder or be held to a standard of care in
connection with the performance of its duties as the Class B Agent or the
Facility Agent other than as expressly provided in this Agreement. Credit Suisse
First Boston may act as the Class B Agent and the Facility Agent without regard
to and without additional duties or liabilities arising from its role as such
administrator or agent or arising from its acting in any such other capacity.
7.9 SUCCESSOR AGENT. (a) The Class B Agent may resign as Class B
Agent upon ten days' notice to the Class B Purchasers, 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 Class B Agent
pursuant to this subsection 7.9(a). If the Class B Agent shall resign as Class B
Agent under this Agreement, then the Required Class B Purchasers and the
Required Class B Owners shall appoint from among the Committed Class B
Purchasers a successor agent for the Class B Purchasers. The successor agent
shall succeed to the rights, powers and duties of the Class B Agent, and the
term "Class B Agent" shall mean such successor agent effective upon its
appointment, and the former Class B Agent's rights, powers and duties as Class B
Agent shall be terminated, without any other or further act or deed on the part
of such former Class B Agent or any of the parties to this Agreement. After the
retiring Class B Agent's resignation as Class B 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 Class B Agent under this Agreement.
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(b) The Facility Agent may resign as Facility Agent upon ten
days' notice to the Class B Purchasers, the Class A Purchasers (as defined in
the Class A 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 B Purchasers and the Required
Class B Owners shall appoint from among the Committed Class B Purchasers
hereunder or the Committed Class A Purchasers under the Class A Certificate
Purchase Agreement a successor Facility Agent of the Class B Certificateholders
and the Class A 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 A 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.
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT
8.1 TRANSFERS OF CLASS B CERTIFICATES. (a) Each Class B Owner
agrees that the beneficial interest in the Class B Certificates purchased by it
will be acquired for investment only and not with a view to any public
distribution thereof, and that such Class B Owner will not offer to sell or
otherwise dispose of any Class B Certificate acquired by it (or any interest
therein) in violation of any of the registration requirements of the Securities
Act or any applicable state or other securities laws. Each Class B Owner
acknowledges that it has no right to require the Transferor to register, under
the Securities Act or any other securities law, the Class B Certificates (or the
beneficial interest therein) acquired by it pursuant to this Agreement or any
Transfer Supplement. Each Class B Owner hereby confirms and agrees that in
connection with any transfer or syndication by it of an interest in the Class B
Certificates, such Class B Owner has not engaged and will not engage in a
general solicitation or general advertising including advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
media or broadcast over radio or television, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
Each Class B Purchaser which executes a Joinder Agreement agrees that it will
execute and deliver to the Transferor, the Servicer, the Trustee and the Class B
Agent on or before the effective date of its Joinder Agreement a letter in the
form attached hereto as EXHIBIT A (an "INVESTMENT LETTER") with respect to the
purchase by such Class B Purchaser of an interest in the Class B Certificates.
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(b) Each initial purchaser of a Class B Certificate or any
interest therein and any Assignee thereof or Participant therein shall certify
to the Transferor, the Servicer, the Trustee and the Class B Agent that it is
either (A)(i) a citizen or resident of the United States, (ii) a corporation or
other entity organized in or under the laws of the United States or any
political subdivision thereof which, if such entity is a tax-exempt entity,
recognizes that payments with respect to the Class B Certificates may constitute
unrelated business taxable income or (iii) a person not described in (i) or (ii)
whose income from the Class B Certificates is and will be effectively connected
with the conduct of a trade or business within the United States (within the
meaning of the Code) and whose ownership of any interest in a Class B
Certificate will not result in any withholding obligation with respect to any
payments with respect to the Class B Certificates by any Person (other than
withholding, if any, under Section 1446 of the Code) and who will furnish to the
Class B Agent, the Servicer and the Trustee, and to the Class B Owner making the
Transfer a properly executed U.S. Internal Revenue Service Form 4224 (and to
agree (to the extent legally able) to provide a new Form 4224 upon the
expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable United States laws) or (B) an estate or
trust the income of which is includible in gross income for United States
federal income tax purposes.
(c) Any sale, transfer, assignment, participation, pledge,
hypothecation or other disposition (a "TRANSFER") of a Class B Certificate or
any interest therein may be made only in accordance with this Section 8.1. Any
Transfer of an interest in a Class B Certificate, a Commitment or any
Noncommitted Purchaser Percentage shall be in respect of (i) in the case of a
Committed Class B Purchaser, at least $5,000,000 in the aggregate, which may be
composed of (A) Class B Principal Balance or (B) to the extent in excess of the
Class B Principal Balance subject to such Transfer, Commitment hereunder, or
(ii) in the case of a Noncommitted Class B Purchaser, at least $5,000,000 in the
aggregate, which may be composed of (A) Class B Principal Balance, or (B) to the
extent in excess of the Class B Principal Balance subject to such Transfer, the
product of the Noncommitted Purchaser Percentage subject to such Transfer times
the aggregate Commitments hereunder. Any Transfer of an interest in a Class B
Certificate otherwise permitted by this Section 8.1 will be permitted only if it
consists of a PRO RATA percentage interest in all payments made with respect to
the Class B Purchaser's beneficial interest in such Class B Certificate. No
Class B Certificate or any interest therein may be Transferred by Assignment or
Participation to any Person (each, a "TRANSFEREE") unless prior to the transfer
the Transferee shall have executed and delivered to the Class B Agent and the
Transferor an Investment Letter.
Each of SRPC and SRI authorizes each Class B Purchaser to
disclose to any Transferee and Support Party and any prospective Transferee or
Support Party any and all financial information in the Class B Purchaser's
possession concerning the Trust, SRPC, SRI and Stage which has been delivered to
the Class B Agent, the Facility Agent or such Class B Purchaser pursuant to the
Related Documents (including information obtained pursuant to rights of
inspection granted hereunder) or which has been delivered to such Class B
Purchaser by or on behalf of the Trust, SRPC, SRI, Stage, the Transferor or the
Servicer in connection with such Class B Purchaser's credit evaluation of the
Trust, SRPC, SRI, Stage, the Transferor or the Servicer prior to becoming a
party to, or purchasing an interest in this Agreement or the Class B
Certificates; PROVIDED that prior to any such disclosure, such Transferee or
Support Party or prospective Transferee or Support Party shall have executed an
agreement agreeing to be bound by the provisions of Section 6.2 hereof.
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(d) Each Class B Purchaser may, in accordance with
applicable law, at any time grant participations in all or part of its
Commitment or its interest in the Class B Certificates, including the payments
due to it under this Agreement and the Pooling and Servicing Agreement (each, a
"PARTICIPATION"), to any Person (each, a "PARTICIPANT"); PROVIDED, HOWEVER, that
no Participation shall be granted to any Person unless and until the Class B
Agent shall have consented thereto and the conditions to Transfer specified in
this Agreement, including in subsection 8.1(c) hereof, shall have been satisfied
and that such Participation consists of a PRO RATA percentage interest in all
payments made with respect to such Class B Purchaser's beneficial interest (if
any) in the Class B Certificates. In connection with any such Participation, the
Class B Agent shall maintain a register of each Participant and the amount of
each Participation. Each Class B Purchaser hereby acknowledges and agrees that
(A) any such Participation will not alter or affect such Class B Purchaser's
direct obligations hereunder, and (B) neither the Trustee, the Transferor nor
the Servicer shall have any obligation to have any communication or relationship
with any Participant. Each Class B Purchaser and each Participant shall comply
with the provisions of subsection 2.5(c). No Participant shall be entitled to
Transfer all or any portion of its Participation, without the prior written
consent of the Class B Agent. Each Participant shall be entitled to receive
additional amounts and indemnification pursuant to Sections 2.4, 2.5 and 2.6 as
if such Participant were a Class B Purchaser and such Sections applied to its
Participation; PROVIDED, in the case of Section 2.5, that such Participant has
complied with the provisions of subsection 2.5(c) as if it were a Class B
Purchaser. Each Class B Purchaser shall give the Class B Agent notice of the
consummation of any sale by it of a Participation and the Class B Agent (upon
receipt of notice from the related Class B Purchaser) shall promptly notify the
Transferor, the Servicer and the Trustee.
(e) Each Class B Purchaser may, with the consent of the
Class B Agent and SRPC and in accordance with applicable law, sell or assign
(each, an "ASSIGNMENT"), to any Person (each, an "ASSIGNEE") all or any part of
its Commitment or its interest in the Class B Certificates and its rights and
obligations under this Agreement and the Pooling and Servicing Agreement
pursuant to an agreement substantially in the form attached hereto as EXHIBIT C
hereto (a "TRANSFER SUPPLEMENT"), executed by such Assignee and the Class B
Purchaser and delivered to the Class B Agent for its acceptance and consent;
PROVIDED, HOWEVER, that no such assignment or sale shall be effective unless and
until the conditions to Transfer specified in this Agreement, including in
subsection 8.1(c) hereof, shall have been satisfied; and PROVIDED FURTHER,
HOWEVER, that the consent of SRPC (i) shall not be required in the case of an
assignment by a Noncommitted Class B Purchaser of its interest in the Class B
Certificates and its rights and obligations under this Agreement and the Pooling
and Servicing Agreement to any one or more of its Liquidity Providers and (ii)
shall not be unreasonably withheld in the case of an assignment by the initial
Noncommitted Class B Purchaser of its interest in the Class B Certificates and
its rights and obligations under this Agreement and the Pooling and Servicing
Agreement to any Structured Purchaser which is administered by the same Person
as such Noncommitted Class B Purchaser. From and after the effective date
determined pursuant to such Transfer Supplement, (x) the Assignee thereunder
shall be a party hereto and, to the extent provided in such Transfer Supplement,
have the rights and obligations of a Class B Purchaser hereunder as set forth
therein and (y) the transferor Class B Purchaser shall, to the extent provided
in such Transfer Supplement, be released from its Commitment and other
obligations under this Agreement; PROVIDED, HOWEVER, that after giving effect to
each such Assignment, the obligations released by any such Class B Purchaser
shall have been assumed by an Assignee or Assignees. Such Transfer Supplement
shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Assignee and the resulting adjustment
of Percentage Interests, Committed Purchaser Percentages, Noncommitted Purchaser
Percentages, Liquidity Percentages or Commitment Percentages arising from the
Assignment. Upon its receipt and acceptance of a duly executed Transfer
Supplement, the Class B Agent shall on the effective date determined pursuant
thereto give notice of such acceptance to the Transferor, the Servicer and the
Trustee and the Servicer will provide notice thereof to each Rating Agency (if
required).
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Upon instruction to register a transfer of a Class B
Purchaser's beneficial interest in the Class B Certificates (or portion thereof)
and surrender for registration of transfer such Class B Purchaser's Class B
Certificate(s) (if applicable) and delivery to the Transferor and the Trustee of
an Investment Letter, executed by the registered owner (and the beneficial owner
if it is a Person other than the registered owner), and receipt by the Trustee
of a copy of the duly executed related Transfer Supplement and such other
documents as may be required under this Agreement, such beneficial interest in
the Class B Certificates (or portion thereof) shall be transferred in the
records of the Trustee and the Class B Agent and, if requested by the Assignee,
new Class B Certificates shall be issued to the Assignee and, if applicable, the
transferor Class B Purchaser in amounts reflecting such Transfer as provided in
the Pooling and Servicing Agreement. Such Transfers of Class B Certificates (and
interests therein) shall be subject to this Section 8.1 in lieu of any
regulations which may be prescribed under Section 6.3 of the Pooling and
Servicing Agreement. Successive registrations of Transfers as aforesaid may be
made from time to time as desired, and each such registration of a transfer to a
new registered owner shall be noted on the Certificate Register.
(f) Each Class B Purchaser may pledge its interest in the
Class B Certificates to any Federal Reserve Bank as collateral in accordance
with applicable law.
(g) Any Class B Purchaser shall have the option to change
its Investing Office, PROVIDED that such Class B Purchaser shall have prior to
such change in office complied with the provisions of subsection 2.5(c) and
PROVIDED FURTHER that such Class B Purchaser shall not be entitled to any
amounts otherwise payable under Section 2.4 or 2.5 resulting solely from such
change in office unless such change in office was mandated by applicable law or
by such Class B Purchaser's compliance with the provisions of this Agreement.
(h) Each Affected Party shall be entitled to receive
additional payments and indemnification pursuant to Sections 2.4, 2.5 and 2.6
hereof as though it were a Class B Purchaser and such Section applied to its
interest in or commitment to acquire an interest in the Class B Certificates;
PROVIDED that such Affected Party shall not be entitled to additional payments
pursuant to (i) Section 2.4 by reason of Regulatory Changes which occurred prior
to the date it became an Affected Party or (ii) Section 2.5 attributable to its
failure to satisfy the requirements of subsection 2.5(c) as if it were a Class B
Purchaser.
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(i) Each Affected Party claiming increased amounts
described in Sections 2.4 or 2.5 shall furnish, through its related Structured
Purchaser, to the Trustee, the Class B Agent, the Servicer and the Transferor a
certificate setting forth the basis and amount of each request by such Affected
Party for any such amounts referred to in Sections 2.4 or 2.5, such certificate
to be conclusive with respect to the factual information set forth therein
absent manifest error.
(j) In the event that a Liquidity Provider is a Downgraded
Purchaser, the related Noncommitted Class B Purchaser shall have the right to
replace such Liquidity Provider with a replacement Liquidity Provider, which
replacement Purchaser shall succeed to the rights of such Liquidity Provider
under this Agreement in respect of its Commitment as a Liquidity Provider, and
such Liquidity Provider shall assign such Commitment and its interest in the
Class B Certificates to such replacement Liquidity Provider in accordance with
the provisions of this Section 8.1; PROVIDED, that (A) such Liquidity Provider
shall not be replaced hereunder with a new investor until such Liquidity
Provider has been paid in full its Percentage Interest of the Class B Principal
Balance and all accrued and unpaid interest thereon by such new investor and all
other amounts (including all amounts owing under Sections 2.4 and 2.5) owed to
it and to all Participants with respect to such Liquidity Provider pursuant to
this Agreement, and (ii) if the Liquidity Provider to be replaced is the Class B
Agent or the Facility Agent, a replacement Class B Agent or Facility Agent, as
the case may be, shall have been appointed in accordance with Section 7.9, and
the Class B Agent or Facility Agent, as the case may be, to be replaced shall
have been paid all amounts owing to it as Class B Agent or Facility Agent, as
the case may be, pursuant to this Agreement. For purposes of this subsection, a
Liquidity Provider shall be a "DOWNGRADED PURCHASER" if and so long as the
credit rating assigned to its short-term obligations by Moody's or Standard &
Poor's on the date on which it became a party to this Agreement shall have been
reduced or withdrawn.
(k) In the event that a Class B Purchaser has requested
payment of additional amounts referred to in subsection 2.4(a), 2.4(b) or 2.5
and payment thereof hereunder shall not be waived by such Class B Purchaser
within 30 days following a request for such waiver from the Transferor, the
Transferor shall have the right to replace such Class B Purchaser hereunder with
a replacement purchaser which shall succeed to the rights of such Class B
Purchaser under this Agreement. Any such replacement purchaser shall be (i)
reasonably acceptable to the Class B Agent and (ii) if such Class B Purchaser is
a Liquidity Provider, acceptable to the related Noncommitted Class B Purchaser
in its sole discretion. Such Class B Purchaser shall assign its Commitment
hereunder and its beneficial interest in the Class B Certificates to such
replacement purchaser in accordance with the provisions of Section 8.1,
PROVIDED, that (i) such Class B Purchaser shall not be replaced hereunder with a
replacement purchaser until such Class B Purchaser has been paid in full its
Percentage Interest of the Class B Principal Balance and all accrued and unpaid
interest thereon by such replacement purchaser and all other amounts (including
all amounts owing under Section 2.4 and 2.5) owed to it pursuant to this
Agreement and (ii) if the Class B Purchaser to be replaced is the Class B Agent
or the Facility Agent or, unless the Class B Agent and the Facility Agent
otherwise agree, a Structured Purchaser sponsored or administered by the Class B
Agent or the Facility Agent (in its individual capacity), a replacement Class B
Agent or the Facility Agent, as the case may be, shall have been appointed in
accordance with Section 7.9 and the Class B Agent or the Facility Agent, as the
case may be, to be replaced shall have been paid all amounts owing to it as
Class B Agent or the Facility Agent, as the case may be, pursuant to this
Agreement; PROVIDED, FURTHER, that such Class B Purchaser shall not be replaced
hereunder with a replacement purchaser unless the Transferor shall have provided
to such Class B Purchaser and the Class B Agent with an Officer's Certificate
stating that such replacement purchaser is not subject to, or has agreed not to
seek, the additional amounts which Class B Purchaser requested pursuant to
subsection 2.4(a), 2.4(b) or 2.5, as the case may be.
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8.2 TAX CHARACTERIZATION. It is the intention of the parties
hereto that the Class B Certificates be treated for tax purposes as
indebtedness.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. This Agreement may not be amended,
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 9.1. With the written consent of
the Required Class B Owners and the Required Class B Purchasers, the Class B
Agent, the Facility Agent, SRPC and SRI may, from time to time, enter into
written amendments, supplements, waivers or modifications hereto for the purpose
of adding any provisions to this Agreement or changing in any manner the rights
of any party hereto or waiving, on such terms and conditions as may be specified
in such instrument, any of the requirements of this Agreement; PROVIDED,
HOWEVER, that no such amendment, supplement, waiver or modification shall (i)
reduce the amount of or extend the maturity of any Class B Certificate or reduce
the rate or extend the time of payment of interest thereon, or reduce or alter
the timing of any other amount payable to any Class B Purchaser hereunder or
under the Supplement, in each case without the consent of the Class B Purchaser
affected thereby, (ii) amend, modify or waive any provision of this Section 9.1,
or, if such amendment would have a material adverse effect on the Class B
Purchasers, the definition of "Class B Invested Amount" or "Class B Principal
Balance", or reduce the percentage specified in the definition of Required Class
B Owners or Required Class B Purchasers, in each case without the written
consent of all Class B Purchasers or (iii) amend, modify or waive any provision
of Section 7 of this Agreement without the written consent of the Class B Agent,
the Facility Agent, the Required Class B Owners and Required Class B Purchasers.
Any waiver of any provision of this Agreement shall be limited to the provisions
specifically set forth therein for the period of time set forth therein and
shall not be construed to be a waiver of any other provision of this Agreement.
Each party hereto agrees that, on a one-time basis following the
initial review of the Related Documents by Moody's and Standard & Poor's on
behalf of Class B Purchasers which are Structured Purchasers, it will at the
request of the Class B Agent made prior to June 30,1998 enter into or to consent
to, as applicable, any amendments or other modifications to the Related
Documents, other than those requiring the consent of all Class B Purchasers as
provided above in this subsection, as shall reasonably be determined by the
Class B Agent to be required for any initial Class B Purchaser which is a
Structured Purchaser to obtain or maintain an informal rating of the Class B
Certificates which will permit such Structured Purchaser's commercial paper
notes to maintain at least the rating from Standard & Poor's and Moody's as in
effect immediately prior to such Structured Purchaser's becoming a Class B
Purchaser after giving effect to its initial purchase of the Class B
Certificates and to purchases from time to time by such Structured Purchaser of
Additional Class B Invested Amounts as contemplated by this Agreement, without
giving effect to any increase in any letter of credit or other enhancement
provided to such Structured Purchaser (other than the liquidity support provided
to such Structured Purchaser by Liquidity Providers).
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The Facility Agent may cast any vote or give any direction under
the Pooling and Servicing Agreement on behalf of the Class B Certificateholders
if it has been directed to do so by (i) the Required Class B Owners, (ii) the
Required Class B Purchasers, and (iii) by the Class A Purchasers (as defined in
the Class A Certificate Purchase Agreement) required under the terms of Section
9.1 of the Class A Certificate Purchase Agreement.
9.2 NOTICES. (a) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or, in the case of mail or
telecopy notice, when received, addressed as follows or, with respect to a Class
B Purchaser, as set forth in its respective Joinder Supplement or Transfer
Supplement, or to such other address as may be hereafter notified by the
respective parties hereto:
SRPC: SRI Receivables Purchase Co., Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SRI Specialty Retailers, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Trustee: Bankers Trust (Delaware)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust and Agency Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Mailing Address:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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The Class B Credit Suisse First Boston, New York Branch
Agent or the Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Agent: Attention: Asset Finance Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Standard Standard & Poor's Ratings Services
& Poor's: ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Surveillance Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) All payments to be made to the Class B Agent or any Class B
Purchaser hereunder shall be made in United States dollars and in immediately
available funds not later than 2:30 p.m. New York City time on the date payment
is due, and, unless otherwise specifically provided herein, shall be made to the
Class B Agent, for the account of one or more of the Class B Purchasers or for
its own account, as the case may be. Unless otherwise directed by the Class B
Agent, all payments to it shall be made by federal wire (ABA #0260-0917-9) and
telegraph name (CR SUISSE NY), to account number 930539-12, reference SRI
Receivables Master Trust, Series 1997-1, with telephone notice (including
federal wire number) to the Asset Finance Department of Credit Suisse First
Boston (212-325-9076).
(c) Any notices permitted or required hereunder to be given by
SRPC shall be effective if given on behalf of SRPC by the Servicer.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Class B Agent, the Facility Agent or any
Class B Purchaser, any right, remedy, power or privilege under any of the
Related Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under any of the
Related Documents preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in the Related Documents are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of SRPC, SRI, the Transferor, the Servicer, the Class B
Agent, the Facility Agent, the Class B Purchasers, any Assignee and their
respective successors and assigns, except that SRPC, SRI, the Transferor and the
Servicer may not assign or transfer any of their respective rights or
obligations under this Agreement except as provided herein and in the Pooling
and Servicing Agreement, without the prior written consent of the Required Class
B Owners and the Required Class B Purchasers.
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9.5 SUCCESSORS TO SERVICER. (a) In the event that a transfer of
servicing occurs under Article VIII or Article X of the Pooling and Servicing
Agreement, (i) from and after the effective date of such transfer, the Successor
Servicer shall be the successor in all respects to the Servicer and shall be
responsible for the performance of all functions to be performed by the Servicer
from and after such date, except as provided in the Pooling and Servicing
Agreement, and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer shall be deemed to
refer to the Successor Servicer, and (ii) as of the date of such transfer, the
Successor Servicer shall be deemed to have made with respect to itself the
representations and warranties made in Section 4.2 (in the case of subsection
4.2(a) with appropriate factual changes); PROVIDED, HOWEVER, that the references
to the Servicer contained in Section 5.1 of this Agreement shall be deemed to
refer to the Servicer with respect to responsibilities, duties and liabilities
arising out of an act or acts, or omission, or an event or events giving rise to
such responsibilities, duties and liabilities and occurring during such time
that the Servicer was Servicer under this Agreement and shall be deemed to refer
to the Successor Servicer with respect to responsibilities, duties and
liabilities arising out of an act or acts, or omission, or an event or events
giving rise to such responsibilities, duties and liabilities and occurring
during such time that the Successor Servicer acts as Servicer under this
Agreement; PROVIDED, HOWEVER, to the extent that an obligation to indemnify the
Class B Purchasers under Section 2.6 arises as a result of any act or failure to
act of any Successor Servicer in the performance of servicing obligations under
the Pooling and Servicing Agreement or the Supplement, such indemnification
obligation shall be of the Successor Servicer and not its predecessor. Upon the
transfer of servicing to a Successor Servicer, such Successor Servicer shall
furnish to the Class B Agent copies of its audited annual financial statements
for each of the three preceding fiscal years or if the Trustee or any other
banking institution becomes the Successor Servicer, such Successor Servicer
shall provide, in lieu of the audited financial statements required in the
immediately preceding clause, complete and correct copies of the publicly
available portions of its Consolidated Reports of Condition and Income as
submitted to the FDIC for the two most recent year end periods.
(b) In the event that any Person becomes the successor to
the Transferor pursuant to Article VII of the Pooling and Servicing Agreement,
from and after the effective date of such transfer, such successor to the
Transferor shall be the successor in all respects to the Transferor and shall be
responsible for the performance of all functions to be performed by the
Transferor from and after such date, except as provided in the Pooling and
Servicing Agreement, and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Transferor by the terms and
provisions hereof, and all references in this Agreement to the Transferor shall
be deemed to refer to the successor to the Transferor; PROVIDED, HOWEVER, that
the references to the Transferor contained in Sections 2.5, 2.6 and 5.1 of this
Agreement shall be deemed to refer to SRPC with respect to responsibilities,
duties and liabilities arising out of an act or acts, or omission, or an event
or events giving rise to such responsibilities, duties and liabilities and
occurring during such time that SRPC was Transferor under this Agreement and
shall be deemed to refer to the successor to SRPC as Transferor with respect to
responsibilities, duties and liabilities arising out of an act or acts, or
omission, or an event or events giving rise to such responsibilities, duties and
liabilities and occurring during such time that the successor to SRPC acts as
Transferor under this Agreement.
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9.6 COUNTERPARTS. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
9.7 SEVERABILITY. Any provisions of this Agreement 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.
9.8 INTEGRATION. This Agreement and the Class B Fee Letter
represent the agreement of the Class B Agent, the Facility Agent, SRPC, SRI, the
Transferor, the Servicer and the Class B Purchasers with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Class B Purchasers, the Class B Agent or the Facility Agent
relative to subject matter hereof not expressly set forth or referred to herein
or therein. Without limiting the generality of the foregoing, that certain
letter agreement, dated as of October 27, 1997, between Stage and Credit Suisse
First Boston, New York Branch, is superseded hereby and shall have no further
force or effect.
9.9 GOVERNING LAW. THIS AGREEMENT 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.
9.10 TERMINATION. This Agreement shall remain in full force and
effect until the earlier to occur of (a) payment in full of the Class B
Repayment Amount and all other amounts payable to the Class B Purchasers, the
Class B Agent and the Facility Agent hereunder and the termination of all
Commitments and (b) the Series Termination Date; PROVIDED, HOWEVER, that if the
Class B Repayment Amount and all other amounts payable to the Class B Purchasers
hereunder are paid in full and all Commitments have terminated prior to the
Series Termination Date, the Class B Agent shall notify the Trustee that
thereafter all amounts otherwise payable to the Class B Purchasers hereunder
shall be payable to the Transferor or any Person designated thereby; and
PROVIDED, FURTHER, that the provisions of Sections 2.4, 2.5, 2.6, 6.1, 6.2, 7.7,
8.2, 9.11, 9.13 and 9.14 shall survive termination of this Agreement and any
amounts payable to the Facility Agent, the Class B Agent, Class B Purchasers or
any Affected Party thereunder shall remain payable thereto.
9.11 LIMITED RECOURSE; NO PROCEEDINGS. (a) The obligations of
SRPC, SRI, the Transferor and the Servicer under this Agreement are several
(except as specifically provided herein) and are solely the corporate
obligations of SRPC, SRI, the Transferor or the Servicer, as applicable. No
recourse shall be had for the payment of any fee or other obligation or claim
arising out of or relating to this Agreement or any other agreement, instrument,
document or certificate executed and delivered or issued by SRPC, SRI, the
Transferor and the Servicer or any officer of any of them in connection
therewith, against any stockholder, employee, officer, director or incorporator
of SRPC, SRI, the Transferor or the Servicer. With respect to obligations of the
Transferor, neither the Class B Agent, the Facility Agent nor any Class B
Purchaser shall look to any property or assets of the Transferor, other than to
(a) amounts payable to the Class B Agent, the Facility Agent or a Class B
Purchaser or to the Transferor under the Receivables Purchase Agreement, any
Supplement or the Pooling and Servicing Agreement and (b) any other assets of
the Transferor not pledged to third parties or otherwise encumbered in any
manner permitted by the Transferor's Certificate of Incorporation. Each Class B
Purchaser, the Facility Agent and the Class B Agent hereby agrees that to the
extent such funds are insufficient or unavailable to pay any amounts owing to it
by the Transferor pursuant to this Agreement, prior to the earlier of the Trust
Termination Date or the commencement of a bankruptcy or insolvency proceeding by
or against the Transferor, it shall not constitute a claim against the
Transferor. Nothing in this paragraph shall limit or otherwise affect the
liability of the Servicer with respect to any amounts owing by it hereunder or
the right of the Class B Agent, the Facility Agent or any Class B Purchaser to
enforce such liability against the Servicer or any of its assets.
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(b) Each of SRPC, SRI, the Transferor, the Servicer, the
Class B Agent, the Facility Agent and each Class B Purchaser hereby agrees that
it shall not institute or join against any Structured Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the latest maturing commercial paper note, medium term note or
other debt security issued by such Structured Purchaser is paid.
9.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the purchase of the Class B
Certificates hereunder and the termination of this Agreement.
9.13 SUBMISSION TO JURISDICTION; WAIVERS. EACH OF SRPC, SRI, THE
TRANSFEROR, THE SERVICER, THE FACILITY AGENT, THE CLASS B AGENT AND EACH CLASS B
PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
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(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM
OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH
IN SECTION 9.2 OR AT SUCH OTHER ADDRESS OF WHICH THE AGENT SHALL
HAVE BEEN NOTIFIED PURSUANT THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE
RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION.
9.14 WAIVERS OF JURY TRIAL. EACH OF SRPC, SRI, THE TRANSFEROR,
THE SERVICER, THE FACILITY AGENT, THE CLASS B AGENT AND THE CLASS B PURCHASERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER
DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this
Certificate Purchase Agreement 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: Treasurer
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Class B Agent and as Facility Agent
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
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