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EXHIBIT 10.49
SFA FINANCE COMPANY
SELLER
SAKS & COMPANY
SERVICER
AND
BANKERS TRUST COMPANY
TRUSTEE
AMENDMENT NO. 1
DATED AS OF DECEMBER 17, 1998
TO THE
SERIES 1996-2 SUPPLEMENT
DATED AS OF APRIL 25, 1996
TO THE
POOLING AND SERVICING AGREEMENT
DATED AS OF APRIL 25, 1996
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THIS AMENDMENT NO. 1 ("Amendment") dated as of December 17, 1998, to the
Series 1996-2 Supplement dated as of April 25, 1996 (the "Series Supplement") to
the Pooling and Servicing Agreement dated as of April 25, 1996 (as amended or
supplemented, the "Pooling and Servicing Agreement"), is by and among SFA
Finance Company, as Seller (the "Seller"), Saks & Company, as Servicer (the
"Servicer"), and Bankers Trust Company, as trustee (the "Trustee"). Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement or the Series Supplement.
W I T N E S S E T H
WHEREAS, the parties hereto are authorized by Section 13.1(b) of the
Pooling and Servicing Agreement to enter into this Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
in the Pooling and Servicing Agreement and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. AMENDMENTS TO THE SERIES SUPPLEMENT
1.1 Section 5.2 of the Series Supplement shall be deleted in its
entirety and replaced by the following provision:
"Section 5.2 Monthly Certificateholders' Statement. On each
Determination Date the Paying Agent shall forward to each Series
1996-2 Certificateholder and each Rating Agency a statement
substantially in the form of Exhibit A hereto."
SECTION 2. REPRESENTATIONS AND WARRANTIES
Each of the Seller and the Servicer represents and warrants that:
(a) Its execution, delivery and performance of this Amendment are within
its corporate powers, have been duly authorized by all necessary corporate
action and do not require any consent or approval which has not been obtained.
(b) This Amendment and the Series Supplement as amended hereby are legal,
valid and binding obligations of it, enforceable in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equitable principles.
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SECTION 3. CONDITIONS PRECEDENT
This Amendment shall become effective as of its date, provided that all of
the following conditions are met:
(a) This Amendment shall have been executed and delivered by the parties
hereto;
(b) The Servicer shall have provided an Officer's Certificate to the
Trustee to the effect that (i) this Amendment will not materially and adversely
affect the interests of any Certificateholder, (ii) the Servicer provided at
least ten Business Days' prior written notice to each Rating Agency of this
Amendment and received written confirmation from each Rating Agency to the
effect that the rating of any Series rated by such Rating Agency will not be
reduced or withdrawn as a result of this Amendment, and (iii) all of the
conditions precedent to the effectiveness of this Amendment have been satisfied;
and
(c) The Seller and Servicer shall have provided Opinions of Counsel to the
Trustee to the effect that (i) this Amendment shall not cause the Trust to be
characterized for Federal income tax purposes as an association taxable as a
corporation, or otherwise have any material adverse impact on the Federal income
taxation of any outstanding Series of Investor Certificates or any Certificate
Owner, and (ii) this Amendment complies with all the requirements of the Pooling
and Servicing Agreement.
SECTION 4. MISCELLANEOUS
(a) Applicability of the Series Supplement
In all respects not inconsistent with the terms and provisions of this
Amendment, the provisions of the Series Supplement are hereby ratified, approved
and confirmed.
(b) Headings
The captions in this Amendment are for convenience of reference only and
shall not define or limit the provisions hereof.
(c) Counterparts
This Amendment may be executed in counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
but one and the same instrument.
(d) Governing Law
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS
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CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(e) The 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 the
recitals contained herein, all of which recitals are made solely by the Seller
and the Servicer.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
SFA FINANCE COMPANY,
as Seller
By: _____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
SAKS & COMPANY,
as Servicer
By: _____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
BANKERS TRUST COMPANY,
as Trustee
By: _____________________________
Name:
Title:
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EXHIBIT A
MONTHLY SERVICER'S CERTIFICATE
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