Exhibit 4.4
SECOND AMENDMENT TO THE AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") to the Amended and
Restated Pooling and Servicing Agreement (the "Agreement") dated
as of August 11, 1995, by and among SRI Receivables Purchase Co.,
Inc., a Delaware corporation (the "Transferor"), Specialty
Retailers, Inc., a Texas corporation (the "Servicer" or "SRI")
and Bankers Trust (Delaware), a Delaware banking corporation (the
"Trustee") is made and entered into as of August 1, 1998 by and
among the Servicer, the Trustee and the Transferor.
WHEREAS, Granite National Bank, N.A. (the "Bank") has been
formed for the purpose of extending credit to enable Obligors to
pay for merchandise or services purchased at an SRI Store;
WHEREAS, the Bank and SRI have entered into that certain
Receivables Transfer Agreement dated as of the date hereof
whereby the Bank agrees to sell, and SRI agrees to purchase the
Receivables arising under Charge Account Agreements between the
Bank and Obligors;
WHEREAS, pursuant to Section 13.1 of the Agreement, the
parties hereto contemplated the inclusion of the SRI Credit Card
Bank;
WHEREAS, the Servicer, the Trustee on behalf of the Trust
and the Transferor desire to effectuate the establishment of the
Granite Accounts with the Bank, as the SRI Credit Card Bank, and
the transfer of the Receivables arising hereunder to the Trust,
by modifying and amending certain terms of the Agreement in the
manner more particularly described herein below;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged:
The Servicer, the Trustee on behalf of the Trust and the
Transferor hereby agree as follows:
1. Defined Terms. Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the
Agreement, as amended by this Amendment.
2. Bank. The definition of the Bank shall read as
follows:
"Bank" means Granite National Bank, N.A., a national
banking association.
3. Credit and Collection Policy. The definition of Credit
and Collection Policy shall be amended and restated to read as
follows:
"Credit and Collection Policy" means the credit,
collection, customer relations and service policies that
apply to an Eligible Account, as such policies currently
exist and as such policies may be amended, modified or
supplemented from time to time subject to Section 5.01(c) of
the Receivables Purchase Agreement.
4. Eligible Receivable. Clause (h) of the definition of
Eligible Receivable shall be amended and restated to read as
follows:
(h) it arises under a Charge Account Agreement that
has been duly authorized by (i) the applicable Originator or
(ii) the creditor of an account approved by each Rating
Agency as an Automatic Additional Account or Supplemental
Account, and which, together with such Receivable, is in
full force and effect and constitutes the legal, valid and
binding obligation of the Obligor of such Receivable
enforceable against such Obligor in accordance with its
terms and is not subject at the time of transfer to the
Trust to any dispute, offset, counterclaim or defense
whatsoever.
5. Additional Defined Terms. The following defined terms
shall be added to Section 1.1 of the Agreement:
"Granite Additional Accounts" shall mean each credit
card account established pursuant to a Charge Account
Agreement between the Bank and any Person which is
identified by an account number, excluding the Granite
Original Accounts.
"Granite Original Accounts" means Accounts which the
Bank establishes with Obligors who had Charge Account
Agreements with SRI on August 1, 1998.
"Merchant Agreement" means an agreement between the
Bank and a merchant pursuant to which the merchant agrees to
honor credit cards issued by the Bank to Obligors and the Bank
agrees to make loans to Obligors for the purpose of purchasing
goods and services at stores operated by the merchant. Without
limiting the foregoing, the Retail Credit Services Agreement
dated as of August 1, 1998 between the Transferor and the Bank is
a Merchant Agreement.
7. SRI Store. The definition of SRI Store shall be
amended and restated to read as follows:
"SRI Store" means any merchant which is a party to a
Merchant Agreement with the Bank.
8. Transferred Account. The definition of Transferred
Account shall be amended and restated to read as follows:
"Transferred Account" shall mean an Account to which a
new credit account number has been issued under
circumstances resulting from a lost or stolen credit card
and not requiring standard application and credit evaluation
procedures under the Credit and Collection Policy, and which
can be traced or identified by reference to or by way of
computer files or microfiche lists delivered to the Trustee
or the bailee of the Trustee pursuant to Section 2.1 or 2.6
as an account into which an Account has been transferred.
9. Addition of Accounts. Section 2.6(b)(i) shall be
amended and restated to read as follows:
(i) the cumulative number of Accounts the Receivables
of which have been added or are designated to be added to
the Trust pursuant to subsection 2.6(a) since the later of
the Initial Closing Date and the first day of the twelfth
preceding Monthly Period which satisfy the conditions of
clause (a) of the definition of "Automatic Additional
Accounts" and the Granite Additional Accounts on such date
shall not be in excess of 20% of the amount equal to (w) the
number of the Active Accounts as of the later of the Initial
Closing Date, the Latest Rating Agency Approval Date and the
last day of the twelfth preceding Monthly Period plus (x)
the number of Accounts the Receivables of which were
designated to be added to the Trust pursuant to clause (b)
of the definition of "Automatic Additional Accounts" (other
than Granite Additional Accounts) on the first day of such
addition after the later of the Initial Closing Date, the
Latest Rating Agency Approval Date and the last day of the
twelfth preceding Monthly Period plus (y) the number of
Supplemental Accounts, if any, the Receivables of which were
designated to be added to the Trust after the later of the
Initial Closing Date, the Latest Rating Agency Approval Date
and the last day of the twelfth preceding Monthly Period
minus (z) any Removed Accounts removed after the later of
the Initial Closing Date, the Latest Rating Agency Approval
Date and the last day of the twelfth preceding Monthly
Period; and
10. Effectiveness of Amendments. The parties hereto
expressly acknowledge that the effectiveness of this Amendment is
conditioned upon the receipt of written confirmation from each
Rating Agency to the effect that the original rating of any
Series or any class of any Series will not be reduced or
withdrawn as a result of this Amendment. Upon receipt by the
Trustee of such written confirmation, this Amendment shall be
deemed effective on the date hereof. Except as expressly set
forth above, all terms of the Agreement shall be and remain in
full force and effect and shall constitute the legal, valid and
binding and enforceable obligations of the parties thereto. To
the extent any terms and conditions in the Agreement shall
contradict or be in conflict with any provisions of this
Amendment, the provisions of this Amendment shall govern.
11. Governing Law. THIS AMENDMENT AND THE AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
12. Counterparts. This Amendment may be executed in
separate counterparts each of which shall be an original and all
of which taken together shall constitute one and the same
agreement.
13. Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the sufficiency of this
Amendment or for or in respect of any recitals contained herein,
all of which recitals are made solely by the Transferor.
IN WITNESS WHEREOF, the parties thereto have executed this
Second Amendment as of August 1, 1998.
SPECIALTY RETAILERS, INC., Servicer
By: /s/ Xxxx Xxxx
Its: Treasurer
SRI RECEIVABLES PURCHASE CO., INC.,
Transferor
By: /s/ Xxxxx Xxxxxx
Its: Chief Financial Officer
BANKERS TRUST (DELAWARE), Trustee
By: /s/ Xxxxx X. Xxxxxxxx
Its: Trust Officer
