EXHIBIT 4.5
AMENDMENT NO. 1 TO
CLASS B CERTIFICATE PURCHASE AGREEMENT
THIS AMENDMENT NO. 1, dated as of October 16, 1998 by and among SRI
RECEIVABLES PURCHASE CO., INC., a Delaware corporation ("SRPC"), individually
and as Transferor (as defined below), SPECIALTY RETAILERS, INC., a Texas
corporation ("SRI"), individually and as Servicer (as defined below), the CLASS
B PURCHASERS parties hereto (collectively, the "CLASS B Purchasers") and CREDIT
SUISSE FIRST BOSTON, a Swiss banking corporation acting through its New York
Branch ("CSFB"), as Class B Agent and as Facility Agent (each as defined below).
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to the Class B Certificate
Purchase Agreement, dated as of December 3, 1997, as modified by the increase
and extension of commitment thereunder dated as of September 28, 1998 (as so
modified, the "CERTIFICATE PURCHASE AGREEMENT"; terms used in this Amendment and
not otherwise defined herein being used as defined in, or for purposes of, the
Certificate Purchase Agreement), relating to the purchase by the Class B
Purchasers of the Class B Initial Invested Amount and from time to time of
Additional Class B Invested Amounts in respect of the Class B Variable Funding
Certificates, Series 1997-1 issued by the SRI Receivables Master Trust; and
WHEREAS, the Transferor has requested that the Class B Purchasers
consent to a proposed Amended and Restated Supplement to be dated as of October
16, 1998, which would amend and, as so amended, restate the Supplement (as so
amended and restated, the "RESTATED SUPPLEMENT"); and
WHEREAS, pursuant to the Restated Supplement, the Trust proposes to
issue its Class B-2 Variable Funding Certificates, Series 1997-1 (the "CLASS B-2
CERTIFICATES"), which would be sold to certain purchasers (the "CLASS B-2
PURCHASERS") pursuant to a Class B-2 Certificate Purchase Agreement, dated as of
October 16, 1998, among SRPC, individually and as Transferor, SRI, individually
and as Servicer, the Class B-2 Purchasers, CSFB, as Class B-2 Agent (in such
capacity, the "CLASS B-2 AGENT"), and the Facility Agent; and
WHEREAS, in connection with the Restated Supplement and the issuance
of the Class B-2 Certificates, the Transferor has requested that the other
parties hereto amend the Certificate Purchase Agreement in certain respects and
that the Class B Purchasers, the Class B Agent and the Facility Agent consent to
the amendments to and restatement of the Supplement set forth in the Restated
Supplement; and
WHEREAS, the other parties hereto are willing to consent to such
amendments and to such restatement on the terms and conditions provided for
herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
I. SECTION AMENDMENTS TO SECTION 1.1.
A. The definition of "Related Documents" contained in Section 1.1 is hereby
amended and restated to read in its entirety as follows:
"RELATED DOCUMENTS" shall mean, collectively, this
Agreement (including the Class B Fee Letter and all Joinder
Supplements and Transfer Supplements), the Class A Purchase
Agreement, the Class B-2 Purchase Agreement, the Master Pooling and
Servicing Agreement, the Supplement, the Series 1997-1 Certificates,
the Receivables Purchase Agreement and the Receivables Transfer
Agreement.
A. The following definitions are hereby added to Section 1.1 of the Certificate
Purchase Agreement in their appropriate alphabetical order:
"CLASS B-2 CERTIFICATE PURCHASE AGREEMENT" shall mean
the Class B-2 Certificate Purchase Agreement, dated as of October
16, 1998 among SRPC, individually and as Transferor, SRI,
individually and as Servicer, the Class B-2 Purchasers parties
thereto, the Class B-2 Agent referred to therein and the Facility
Agent, as amended, modified or otherwise supplemented from time to
time.
"CLASS B-2 CERTIFICATES" shall mean the Trust's Class
B-2 Variable Funding Certificates, Series 1997-1.
"GRANITE" shall mean Granite National Bank, N.A., a
national banking association, which is a subsidiary of Stage.
"RECEIVABLES TRANSFER AGREEMENT" shall mean the
Receivables Transfer Agreement, dated as of August 1, 1998, between
SRI, as purchaser, and Granite, as transferor, as the same may from
time to time be amended or otherwise modified.
I. SECTION AMENDMENT TO SUBSECTION 3.2. Subsection 3.2(d) of the Certificate
Purchase Agreement is hereby amended and restated to read in its entirety as
follows:
(d) after giving effect to such purchase, the sum of the Class
B-2 Invested Amount and 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;
I. SECTION AMENDMENT TO SECTION 4.2. Subsection (m) of Section 4.2 of the
Certificate Purchase Agreement is hereby replaced by the following new
subsections (m) and (n):
(m) The representations and warranties of Granite set forth in
Section 4.02 and 4.03 of the Receivables Transfer Agreement are true and
correct in all material respects.
(n) All written factual information heretofore furnished by
SRPC, SRI, Granite or Stage to, or for delivery to, the Class 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, SRI or Granite, was true and correct in all material respects on the
date as of which such information was stated or certified and remains true
and correct in all material respects (unless such information specifically
relates to an earlier date in which case such information shall have been
true and correct in all material respects on such earlier date).
I. SECTION AMENDMENTS TO SECTION 5.1.
A. Subsection 5.1(e) of the Certificate Purchase
Agreement is hereby amended and restated to read as follows:
(e) SRI shall furnish to the Class B Agent (i) promptly
when publicly available, the annual (audited) and quarterly
(unaudited) consolidated and consolidating financial statements of
each of Stage and SRPC, the publicly available portions of Granite's
quarterly and annual consolidated reports of condition and income
and such other publicly available financial information, if any, as
to Stage, SRI, Granite or SRPC as the Class 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, SRI or Granite;
A. Subsection 5.1(k) of the Certificate Purchase
Agreement is hereby amended and restated to read as follows:
(k) the Transferor and the Servicer shall timely make
all payments, deposits or transfers and give all instructions to
transfer required by this Agreement, the Pooling and Servicing
Agreement, the Receivables Purchase Agreement and the Receivables
Transfer Agreement;
I. SECTION AMENDMENT TO SECTION 6.1. Section 6.1 of the Certificate Purchase
Agreement is hereby amended and restated to read as follows:
6.1 COVENANTS OF SRPC, ETC. SRPC, SRI, the Transferor and
the Servicer shall hold in confidence, and not disclose to any Person, the
terms of any fees payable in connection with this Agreement except they
may disclose such information (i) to their officers, directors, employees,
agents, counsel, accountants, auditors, advisors or representatives, (ii)
with the consent of the Required Class B-2 Purchasers and Class B-2 Agent,
or (iii) to the extent SRPC, SRI, Granite, the Transferor or the Servicer
or any Affiliate of either of them should be required by any law or
regulation applicable to it or requested by any Governmental Authority to
disclose such information; PROVIDED, that, in the case of clause (iii),
SRPC, the Transferor, SRI, Granite or the Servicer, as the case may be,
will use all reasonable efforts to maintain confidentiality and will
(unless otherwise prohibited by law) notify the Class B Agent of its
intention to make any such disclosure prior to making such disclosure.
I. SECTION AMENDMENTS TO ARTICLE 7.
A. Sections 7.3, 7.6 and 7.7 of the Certificate Purchase Agreement are hereby
amended to add "Granite," after "SRI," each time such word appears therein.
A. Subsection 7.9(b) of the Certificate Purchase
Agreement is hereby amended and restated to read as follows:
(b) The Facility Agent may resign as Facility Agent upon
ten days' notice to the Class B Purchasers, the Class A Purchasers
(as defined in the Class A Certificate Purchase Agreement), the
Class B-2 Purchasers (as defined in the Class B-2 Certificate
Purchase Agreement), the Trustee, the Transferor and the Servicer
with such resignation becoming effective upon a
successor agent succeeding to the rights, powers and duties of the
Facility Agent pursuant to this subsection 7.9(b). If the Facility
Agent shall resign as Facility Agent under this Agreement, then the
Required Class 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 A
Certificateholders and the Class B Certificateholders as provided in
the Supplement; PROVIDED that no such appointment shall be effective
unless such successor is also appointed as successor Facility Agent
under the Class B Certificate Purchase Agreement and the Class B-2
Certificate Purchase Agreement. The successor agent shall succeed to
the rights, powers and duties of the Facility Agent, and the term
"Facility Agent" shall mean such successor agent effective upon its
appointment, and the former Facility Agent's rights, powers and
duties as Facility Agent shall be terminated, without any other or
further act or deed on the part of such former Facility Agent or any
of the parties to this Agreement. After the retiring Facility
Agent's resignation as Facility Agent, the provisions of this
Section 7 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Facility Agent under this
Agreement.
I. SECTION CONSENT. Each Class B Purchaser, Alpine Securitization Corp., as the
Class B Owner and the Class B Agent hereby consent to the Restated Supplement
and to the issuance of the Class B-2 Certificates thereunder and hereby direct
the Facility Agent to consent thereto. The Class B Agent hereby certifies that
its records reflect that Alpine Securitization Corp. is the sole Class B Owner.
I. SECTION REPRESENTATIONS AND WARRANTIES. In order to induce each Class B
Purchaser, the Class B Agent and the Facility Agent to enter into this Amendment
and to grant the consent set forth in Section 7 above,
A. SRPC hereby confirms that, after giving effect to this Amendment and the
Restated Supplement and to the transactions contemplated by the Class B-2
Certificate Purchase Agreement, its representations and warranties set forth or
referred to in the Certificate Purchase Agreement are true and correct in all
material respects as of the date hereof, as though made on and as of such date,
and that no event or condition which of itself or with the giving of notice or
the lapse of time or both would constitute a Termination Event has occurred and
is continuing; and
A. SRI hereby confirms that, after giving effect to this Amendment and the
Restated Supplement and to the transactions contemplated by the Class B-2
Certificate Purchase Agreement, its representations and warranties set forth or
referred to in the Certificate Purchase Agreement are true and correct in all
material respects as of the date hereof, as though made on and as of such date,
and that no event or
condition which of itself or with the giving of notice or the lapse of time or
both would constitute a Termination Event has occurred and is continuing.
I. SECTION MISCELLANEOUS.
A. As amended by this Amendment, the Certificate Purchase Agreement is in all
respects ratified and confirmed, and the Certificate Purchase Agreement as
amended by this Amendment shall be read, taken and construed as one and the same
instrument.
A. This Amendment shall be effective as of the date first above written when
executed by SRPC, SRI, each Class B Purchaser, the Class B Owner, the Class B
Agent and the Facility Agent, subject to (i) the satisfaction of the conditions
precedent set forth in Section 3.1 of the Class B-2 Certificate Purchase
Agreement, and (ii) receipt by the Class B Agent of executed copies of all
opinions, certificates, letters and other documents required under Section 3.1
of the Class B-2 Certificate Purchase Agreement to be delivered to the Class B-2
Agent (each such opinion, unless otherwise agreed to by the Class 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.
A. This Amendment 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, subject to
the provisions of Sections 8.1 and 9.4 of the Certificate Purchase Agreement.
A. This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
A. Any provisions of this Amendment which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction.
A. This Amendment may be amended from time to time only if the conditions set
forth in Section 9.1 of the Certificate Purchase Agreement are satisfied.
A. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective officers as of the day and year first above
written.
SRI RECEIVABLES PURCHASE CO., INC.,
individually and as Transferor
By: /s/ XXXX X. XXXX
Name: Xxxx X. Xxxx
Title: Treasurer
SPECIALTY RETAILERS, INC.,
individually and as Servicer
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Vice Chairman and
Chief Financial Officer
(principal financial and
accounting officer)
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Class B Agent
and as Facility Agent
By: /s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: Associate
By: /s/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Associate
THE FOREGOING IS HEREBY
CONSENTED TO:
ALPINE SECURITIZATION CORP.
as a Class B Purchaser and as Class B Owner
By Credit Suisse First Boston, New York Branch,
its attorney-in-fact
By: /s/ XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: Associate
By: /s/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Class B Purchaser
By: /s/ XXXXXX X. XXXXXXXXX
Name:
Title: Associate
By: /s/ XXXXXXX XXXXX
Name:
Title: Associate
