C-30
Exhibit 4.25
EXECUTION COPY
CLASS B CERTIFICATE PURCHASE AGREEMENT
Dated as of November 9, 1999
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,
Facility Agent
____________________
Relating to
SRI Receivables Master Trust
Class B Variable Funding Certificates, Series 1999-1
____________________
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 2
1.1 Definitions 2
1.2 Other Definitional Provisions 10
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 10
2.1 Purchases 10
2.2 Reductions, Increases and Extensions of Commitments 13
2.3 Calculation of Interest, Fees, Expenses,
Payments, Etc 16
2.4 Requirements of Law 18
2.5 Taxes 20
2.6 Indemnification 22
SECTION 3. CONDITIONS PRECEDENT 25
3.1 Condition to Initial Purchase 25
3.2 Condition to Additional Purchase 28
SECTION 4. REPRESENTATIONS AND WARRANTIES 29
4.1 Representations and Warranties of SRPC 29
4.2 Representations and Warranties of SRI 31
4.3 Representations and Warranties of the Agents, the
Facility Agent and the Class B Purchasers 34
SECTION 5. COVENANTS 34
5.1 Covenants of SRPC and SRI 34
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY 39
6.1 Covenants of SRPC, Etc. 39
6.2 Covenants of Class B Purchasers 39
SECTION 7. THE AGENTS 40
7.1 Appointment 40
7.2 Delegation of Duties 40
7.3 Exculpatory Provisions 40
7.4 Reliance by Agent 41
7.5 Notices 41
7.6 Non-Reliance on Agent and Other Class B Purchasers 41
7.7 Indemnification 42
7.8 Agents in Their Individual Capacities 42
7.9 Successor Agent 43
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT 44
8.1 Transfers of Class B Certificates 44
8.2 Tax Characterization 48
SECTION 9. MISCELLANEOUS 48
9.1 Amendments and Waivers 48
9.2 Notices 49
9.3 No Waiver; Cumulative Remedies 51
9.4 Successors and Assigns 51
9.5 Successors to Servicer 51
9.6 Counterparts 52
9.7 Severability 52
9.8 Integration 52
9.9 Governing Law 53
9.10 Termination 53
9.11 Limited Recourse; No Proceedings 53
9.12 Survival of Representations and Warranties 54
9.13 Submission to Jurisdiction; Waivers 54
9.14 WAIVERS OF JURY TRIAL 55
LIST OF EXHIBITS
EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Joinder Supplement
EXHIBIT C Form of Transfer Supplement
CLASS B CERTIFICATE PURCHASE AGREEMENT, dated as of
November 9, 1999, 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 (as hereinafter defined) from time to time
parties hereto, the AGENTS for the Purchaser Groups from time to
time parties hereto (each such party, together with their
respective successors in such capacity, an "Agent"), and CREDIT
SUISSE FIRST BOSTON, a Swiss banking corporation acting through
its New York Branch ("CSFB"), as facility agent for the Class B
Purchasers and for the Class A-1 Purchasers and the Class A-2
Purchasers, each 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 Second Amended and Restated
Pooling and Servicing Agreement dated as of November 1, 1999 (as
the same may from time to time be amended or otherwise modified,
the "Master Pooling and Servicing Agreement"), pursuant to which
the Transferor has created the SRI Receivables Master Trust (the
"Trust");
WHEREAS, pursuant to a Series 1999-1 Supplement to the
Master Pooling and Servicing Agreement, dated as of November 9,
1999 (as the same may from time to time be amended, supplemented
or otherwise modified, the "Supplement") the Trust has issued its
Class C Floating Rate Certificates, Series 1999-1 (the "Class C
Certificates"), having a Class C Initial Invested Amount (as
defined in the Supplement) equal to $28,000,000, its Class D
Floating Rate Certificates, Series 1999-1 (the "Class D
Certificates"), having a Class D Initial Invested Amount (as
defined in the Supplement) equal to $18,375,000 and its Class E
Certificates, Series 1999-1 (the "Class E Certificates"), having
a Class E Initial Invested Amount (as defined in the Supplement)
equal to $20,125,000;
WHEREAS, pursuant to the Supplement, as supplemented by
the Issuance Supplement thereto, dated as of November 9, 1999 (as
the same may from time to time be amended or otherwise modified,
the "Issuance Supplement"; and the Supplement, as supplemented by
the Issuance Supplement, together with the Master Pooling and
Servicing Agreement, the "Pooling and Servicing Agreement") the
Trust proposes to issue its Class B Variable Funding
Certificates, Series 1999-1 (the "Class B Certificates"), its
Class A-1 Variable Funding Certificates, Series 1999-1 (the
"Class A-1 Certificates") and its Class A-2 Variable Funding
Certificates, Series 1999-1 (the "Class A-2 Certificates"); 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 1999-1 and to no other Series of Investor Certificates
issued by the Trust.
"Adjusted Commitment" shall mean on any date of
determination, with respect to a Liquidity Purchaser for a
Conduit Purchaser, such Liquidity Purchaser's Commitment minus
the aggregate outstanding principal amount of its Support
Advances to such Conduit Purchaser (excluding any portion thereof
advanced to such Conduit Purchaser to fund interest, discount,
fees, expenses or similar amounts in respect of Commercial Paper
Notes or other indebtedness of such Conduit Purchaser or in
respect of the Class B Certificates).
"Affected Party" shall mean, with respect to any
Conduit Purchaser, any Support Party of such Conduit Purchaser.
"Agent" has the meaning specified in the preamble to
this Agreement.
"Agreement" shall mean this Class B Certificate
Purchase Agreement, as amended, supplemented or otherwise
modified from time to time.
"Alternative Rate" has the meaning specified in Exhibit
B-3 of the Issuance Supplement.
"Assignee" and "Assignment" have the respective
meanings specified in subsection 8.1(e) of this Agreement.
"Certificate Rate Determination Date" shall mean, for
any Interest Accrual Period, the Second Business Day prior to the
Distribution Date with respect to such Interest Accrual Period.
"Class A-1 Certificates" has the meaning specified in
the recitals to this Agreement.
"Class A-1 Purchase Agreement" shall mean the Class A-1
Certificate Purchase Agreement, dated as of the date hereof,
among SRPC, individually and as Transferor, SRI, individually and
as Servicer, the Class A-1 Purchasers parties thereto, the agents
for the purchaser groups referred to therein and the Facility
Agent referred to therein, as amended, modified or otherwise
supplemented from time to time.
"Class A-1 Purchasers" has the meaning specified in the
Class A-1 Purchase Agreement.
"Class A-2 Certificates" has the meaning specified in
the recitals to this Agreement.
"Class A-2 Purchase Agreement" shall mean the Class A-2
Certificate Purchase Agreement, dated as of the date hereof,
among SRPC, individually and as Transferor, SRI, individually and
as Servicer, the Class A-2 Purchasers parties thereto, the agents
for the purchaser groups referred to therein and the Facility
Agent, as amended, modified or otherwise supplemented from time
to time.
"Class A-2 Purchasers" has the meaning specified in the
Class A-2 Purchase Agreement.
"Class B Certificates" has the meaning specified in the
recitals to this Agreement.
"Class B Exiting Purchaser Amortization Amount" shall
mean, with respect to a Purchase Termination Date, the sum of (i)
the aggregate Percentage Interests of all Committed Purchasers
and Liquidity Purchasers which became Exiting Purchasers on such
date, times the Class B Principal Balance on such date, plus,
with respect to each of the Conduit Purchasers, (ii) the product
of (A) the aggregate Liquidity Percentages of all Liquidity
Purchasers with respect to such Conduit Purchaser which became
Exiting Purchasers on such date, times (B) the Percentage
Interest of such Conduit Purchaser times the Class B Principal
Balance on such date, in each case determined after giving effect
to any purchases of Additional Class B Invested Amounts
occurring, any Assignments which became effective and any Support
Advances made on such date.
"Class B Fee Letter" shall mean that certain letter
agreement, designated therein as the Series 1999-1 Class B Fee
Letter and dated as of the date hereof, among the Agent for each
Purchaser Group, the Facility 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 an Agent hereunder as
nominee on behalf of Class B Purchasers in a Purchaser Group, 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 such Agent in accordance with this Agreement.
"Class B Program Fees" shall mean the ongoing program
fees payable to Class B Purchasers in respect of the Class B
Purchase Limit, in the amounts and on the dates set forth in the
Class B Fee Letter.
"Class B Purchasers" shall mean, collectively, the
Conduit Purchasers, the Liquidity Purchasers and the Committed
Purchasers.
"Class B Purchase Limit" shall mean, on any date of
determination, the aggregate Commitments of the Committed
Purchasers and the Liquidity Purchasers.
"Class B Utilization Fees" shall mean the ongoing
utilization fees payable to Class B Purchasers in respect of the
Class B Principal Balance, in the amounts and on the dates set
forth in the Class B Fee Letter.
"Class C Certificates" has the meaning specified in the
recitals to this Agreement.
"Class D Certificates" has the meaning specified in the
recitals to this Agreement.
"Class E Certificates" has the meaning specified in the
recitals to this Agreement.
"Closing Date" shall mean November 9, 1999.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commercial Paper Notes" shall mean, with respect to a
Conduit Purchaser, the short-term promissory notes issued by such
Conduit Purchaser which are allocated by such Conduit Purchaser
as its funding for its purchasing or maintaining its Percentage
Interest of the Class B Principal Balance hereunder.
"Commercial Paper Rate" has the meaning specified in
Exhibit B-3 of the Issuance Supplement.
"Commitment" shall mean, for any Committed Purchaser or
Liquidity Purchaser, the maximum amount of such Class B
Purchaser's commitment to purchase a portion of the Class B
Initial Invested Amount or Additional Class B Invested Amounts,
as set forth opposite such Class B Purchaser's name in the
Joinder Supplement or Transfer Supplement by which such Committed
Purchaser became a party to this Agreement or assumed the
Commitment (or a portion thereof) of another Class B Purchaser,
as such amount may be adjusted from time to time pursuant to
Transfer Supplement(s) executed by such Class B Purchaser and its
Assignee(s) and delivered pursuant to Section 2.2 of this
Agreement or pursuant to Section 8.1 of this Agreement. In the
event that a Class B Purchaser is both a Committed Purchaser and
a Liquidity Purchaser, or is a Liquidity Purchaser which
maintains a portion of its Commitment hereunder in relation to
more than one Conduit Purchaser, such Class B Purchaser shall be
deemed to hold separate Commitments hereunder in each such
capacity.
"Commitment Expiration Date" shall mean, with respect
to a Committed Purchaser or Liquidity Purchaser, November 7,
2000, as such date may be extended from time to time with respect
to such Class B Purchaser in accordance with subsection 2.2(e)
hereof.
"Committed Purchaser" shall mean any Class B Purchaser
which is designated as a Committed Purchaser in the Joinder
Supplement or Transfer Supplement pursuant to which it became a
party to this Agreement, 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.
"Conduit Purchaser" shall mean shall mean any Class B
Purchaser which is designated as a Conduit Purchaser in the
Joinder Supplement or Transfer Supplement pursuant to which it
became a party to this Agreement.
"Consented Assignee" shall mean each Class B Purchaser
and each Agent (in its individual capacity) which is a party to
any Joinder Supplement, each Class A-1 Purchaser, each Class A-2
Purchaser, each Person listed in the Consented Assignee Letter as
in effect on the date on which such Person became or agreed to
become an Assignee, a Participant or a Support Party, and each
other Person who has been consented to as an Assignee or
potential Assignee by SRPC, which consent shall not be
unreasonably withheld in the case of an assignment by a Conduit
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 other Conduit Purchaser which is
administered by the same Person as the assignor Conduit
Purchaser.
"Corporate Base Rate" shall mean, for any day, the
higher of (i) the base commercial lending rate per annum
announced from time to time by Credit Suisse First Boston in New
York in effect on such day, or (ii) the interest rate per annum
quoted by Credit Suisse First Boston at approximately 11:00 a.m.,
New York City time, on such day, to dealers in the New York
Federal funds market for the overnight offering of United States
dollars by Credit Suisse First Boston plus one-half of one
percent (0.50%). (The Corporate Base Rate is not intended to
represent the lowest rate charged by the Credit Suisse First
Boston for extensions of credit.)
"Dissenting Purchaser" has the meaning specified in
subsection 2.2(e) of this Agreement.
"Downgraded Purchaser" has the meaning specified in
subsection 8.1(j) of this Agreement.
"Estimated Interest Adjustment" has the meaning
specified in Exhibit B-3 to the Issuance Supplement.
"Excluded Taxes" has the meaning specified in
subsection 2.5(a) of this Agreement.
"Exiting Purchaser" has the meaning specified in
subsection 2.2(e) of this Agreement.
"Extension Date" has the meaning specified in
subsection 2.2(e) hereof.
"Extension Notice Deadline" has the meaning specified
in subsection 2.2(e) of this Agreement.
"Granite" shall mean Granite National Bank, N.A., a
national banking association, which is a subsidiary of Stage.
"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.
"Intended Characterization" has the meaning specified
in Section 8.2 of this Agreement.
"Investing Office" shall mean initially, the office of
any Class B Purchaser (if any) designated as such in the Joinder
Supplement or Transfer Supplement by which it became a party
hereto, and thereafter, such other office of such Class B
Purchaser as may be designated in writing to the Class B Agent,
the Transferor, the Servicer and the Trustee by such Class B
Purchaser.
"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 Liquidity
Purchaser for a Conduit Purchaser, such Liquidity Purchaser's
Adjusted Commitment with respect to such Conduit Purchaser as a
percentage of the aggregate Adjusted Commitments of all Liquidity
Purchasers for such Conduit Purchaser.
"Liquidity Purchaser" shall mean, with respect to a
Conduit Purchaser, each Class B Purchaser identified as a
Liquidity Purchaser for such Conduit Purchaser in the Joinder
Supplement or Transfer Supplement pursuant to which such Conduit
Purchaser became a party hereto, and any Assignee of such Class B
Purchaser to the extent such Assignee has assumed, pursuant to a
Transfer Supplement, the Commitment of such Class B Purchaser.
"Master Pooling and Servicing Agreement" has the
meaning specified in the recitals to this Agreement.
"Maximum Purchase Amount" shall mean, for any Conduit
Purchaser, the aggregate Commitments of its Liquidity Purchasers.
"New Issuance" has the meaning specified in subsection
5.1(p) of this Agreement.
"Notes" has the meaning specified in subsection 9.11(b)
of this Agreement.
"Parity Class" shall mean, with respect to the Class A
Certificates or the Class B Certificates, a class or subclass of
Series 1999-1 Certificates which are on a parity with the Class A
Certificates or the Class B Certificates, as the case may be, as
to allocations of Available Series 1999-1 Finance Charge
Collections, Excess Finance Charge Collections, Series Transferor
Finance Charge Collections, Reallocated Principal Collections or
Available Principal Collections.
"Partial Expiration Date" shall mean any date on which
the Commitment Expiration Date for some, but not all, of
Committed Purchasers and Liquidity Purchasers occurs.
"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.
"Person" shall mean an individual, partnership,
corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority
or other entity of whatever nature.
"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.
"Purchase Termination Date" shall mean, for a Class B
Purchaser, the first to occur of (i) in the case of a Committed
Purchaser or Liquidity Purchaser, the Commitment Expiration Date
for such Class B Purchaser or, in the case of a Conduit
Purchaser, the latest Commitment Expiration Date for any of its
Liquidity Purchasers, (ii) the Amortization Period Commencement
Date, or (iii) the date on which a Mandatory Partial
Amortization Event is deemed to have occurred.
"Purchaser Group" shall mean each group of Class B
Purchasers consisting of (i) a Conduit Purchaser, (ii) the
Liquidity Purchasers with respect to such Conduit Purchaser, and
(iii) any Committed Purchasers which are assignees of such
Conduit Purchaser or any such Liquidity Providers.
"Purchaser Percentage" shall mean, with respect to a
Committed Purchaser or Conduit Purchaser, its Commitment or
Maximum Purchase Amount, as the case may be, as a percentage of
the Class B Purchase Limit.
"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.
"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 any entity controlling such Class B
Purchaser, Affected Party or Participant; or
(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 or any entity controlling 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 or any entity controlling 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-1 Purchase
Agreement (including each fee letter, joinder supplement and
transfer supplement thereunder), the Class A-2 Purchase Agreement
(including each fee letter, joinder supplement and transfer
supplement thereunder), the Master Pooling and Servicing
Agreement, the Supplement, the Issuance Supplement, the
Series 1999-1 Certificates, the Receivables Purchase Agreement
and the Receivables Transfer Agreement.
"Required Class B Owners" shall mean, at any time,
Class B Owners having Percentage Interests aggregating greater
than 50%.
"Required Class B Purchasers" shall mean, at any time,
Committed Purchasers and Liquidity Purchasers having Commitments
aggregating greater than 50% of the Class B Purchase Limit.
"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 Corporate Base Rate in effect for
such day, plus (ii) 2.00%.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Series 1999-1 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.
"Supplement" has the meaning specified in the recitals
to this Agreement.
"Support Facility" shall mean any liquidity or credit
support agreement or other facility with a Conduit Purchaser
which relates, either generally or specifically, to this
Agreement (including any agreement to purchase an assignment of
or participation in, or to make loans or other advances in
respect of, Class B Certificates).
"Support Party" shall mean any bank, insurance company
or other entity extending or having a commitment to extend funds
to or for the account of a Conduit Purchaser (including by
agreement to purchase an assignment of or participation in, or to
make loans or other advances in respect of, Class B Certificates)
under a Support Facility. Each Liquidity Purchaser for a Conduit
Purchaser shall be deemed to be a Support Party for such Conduit
Purchaser.
"Taxes" has the meaning specified in subsection 2.5(a)
of this Agreement.
"Termination Event" shall mean the occurrence of a
Trust Pay Out Event, a Series 1999-1 Pay Out Event, Mandatory
Partial Amortization Event or a Servicer Default, or the
occurrence of an event or condition which would be a Trust Pay
Out Event, a Series 1999-1 Pay Out Event, Mandatory Partial
Amortization 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.
"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 Conduit Purchaser may
purchase its Purchaser Percentage of the Class B Certificates on
the Closing Date for a purchase price equal to its Purchaser
Percentage of the Class B Initial Invested Amount, and (ii) each
Liquidity Purchaser for each Purchaser Group, severally, agrees
to purchase on the Closing Date its Liquidity Percentage of the
portion of the Class B Initial Invested Amount not purchased by
the Conduit Purchaser in such Purchaser Group pursuant to clause
(i), in each case for a purchase price equal to the portion of
the Class B Initial Invested Amount so purchased.
(b) On and subject to the terms and conditions of this
Agreement and prior to its Purchase Termination Date, (i) each
Conduit Purchaser may purchase its Purchaser Percentage of any
Additional Class B Invested Amount offered for purchase pursuant
to Section 6.15 of the Pooling and Servicing Agreement, and
(ii) each Committed Purchaser (if any), severally, agrees to
purchase its 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.
(c) The purchase of the Class B Initial Invested
Amount shall be made on prior notice from the Transferor to the
Facility Agent and each Agent received not later than 4:00 p.m.
New York City time on the Business Day preceding the Closing
Date. 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 Facility Agent and each 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. Each Agent shall promptly forward a
copy of each such notice received by it to each Class B Purchaser
in its Purchaser Group.
(d) Each Conduit Purchaser shall notify the Agent for
its Purchaser Group 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 Conduit Purchaser shall not
have timely provided such notice such Conduit Purchaser shall be
deemed to have determined not to make such purchase. Such Agent
shall notify the Transferor, the Servicer and each Liquidity
Purchaser for such Conduit Purchaser on or prior to 10:00 a.m.,
New York City time, on the applicable Purchase Date if such
Conduit Purchaser has not determined to purchase its entire share
of the Class B Initial Invested Amount or the Additional Class B
Invested Amount, as the case may be, and shall specify in such
notice (i) the identity of such Conduit Purchaser, (ii) the
portion of the Class B Initial Invested Amount or the Additional
Class B Invested Amount, as the case may be, which such Conduit
Purchaser has not elected to purchase as provided above, and
(iii) the respective Liquidity Percentages of such Liquidity
Purchasers on such Purchase Date (as determined by such Agent in
good faith; for purposes of such determination, such Agent shall
be entitled to rely conclusively on the most recent information
provided by such Conduit Purchaser or its agent or by the agent
for its Support Parties). Subject to receiving such notice and to
the satisfaction of the applicable conditions set forth in
Article 3 hereof, each of such Conduit Purchaser's Liquidity
Purchasers shall on the applicable Purchase Date purchase a
portion of the Class B Initial Invested Amount or the Additional
Class B Invested Amount, as the case may be, which such Conduit
Purchaser has not elected to purchase in an amount equal to its
Liquidity Percentage thereof, for a purchase price equal to the a
portion of the Class B Initial Invested Amount or the Additional
Class B Invested Amount, as the case may be, so purchased.
(e) Each Class B Purchaser's purchase price payable
pursuant to subsection 2.1(a), 2.1(b) or 2.1(d) of this Agreement
shall be made available to the Agent for its Purchaser Group,
subject to the fulfillment of the applicable conditions set forth
in Article 3 hereof, at or prior to 2:00 p.m., New York City
time, on the applicable Purchase Date, by deposit of immediately
available funds to an account of such Agent specified in
subsection 9.2(b) of this Agreement. Such Agent shall promptly
notify the Transferor in the event that any Class B Purchaser
either fails to make such funds available to such Agent before
such time or notifies such Agent that it will not make such funds
available to such Agent before such time. Subject to (i) such
Agent's receipt of such funds and (ii) the fulfillment of the
applicable conditions set forth in Article 3 hereof, as
determined by such Agent, such Agent will not later than
3:00 p.m., New York City time, on such Purchase Date make such
funds available, in the same type of funds received, by wire
transfer thereof to the account of Transferor in the United
States specified in the applicable purchase notice given pursuant
to subsection 2.1(c) or, in the case of the purchase on the
Closing Date, specified in writing by the Transferor to such
Agent not later than the Business Day prior to the Closing Date.
(f) In the event that notwithstanding the fulfillment
of the applicable conditions set forth in Article 3 hereof with
respect to a purchase, a Conduit Purchaser elected to make a
purchase on a Purchase Date but failed to make its purchase price
available to the Agent for its Purchaser Group when required by
subsection 2.1(e) of this Agreement, such Conduit Purchaser shall
be deemed to have rescinded its election to make such purchase,
and neither the Transferor nor any other party shall have any
claim against such Conduit Purchaser by reason for its failure to
timely make such purchase. In any such case, such Agent shall
give notice of such failure not later than noon, New York
City time, on the Purchase Date to each Liquidity Purchaser for
such Conduit Purchaser, which notice shall specify (i) the
identity of such Conduit Purchaser, (ii) the amount of the
purchase which it had elected but failed to make and (iii) the
respective Liquidity Percentages of such Liquidity Purchasers on
such Purchase Date (as determined by such Agent in good faith;
for purposes of such determination, such Agent shall be entitled
to rely conclusively on the most recent information provided by
such Conduit Purchaser or its agent or by the agent for its
Support Parties). Subject to receiving such notice, each of such
Conduit Purchaser's Liquidity Purchasers shall purchase a portion
of the Class B Invested Amount in an amount equal to its
Liquidity Percentage of the amount described in clause (ii) above
at or before 4:00 p.m., New York City time, on such Purchase Date
and otherwise in accordance with subsection 2.1(d) of this
Agreement. Subject to such Agent's receipt of such funds, such
Agent will not later than 5:00 p.m., New York City time, on such
Purchase Date make such funds available, in the same type of
funds received, by wire transfer thereof to the account of the
Transferor described in subsection 2.1(e) of this Agreement,
which payment shall be deemed to be timely for purposes of this
Agreement.
(g) The Agent for each Purchaser Group shall notify
the Transferor, the Servicer and each Class B Purchaser in its
Purchaser Group 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 Increase Date (in the case
of any purchases of Additional Class B Invested Amounts) of the
identity of each Class B Purchaser in such Purchaser Group which
purchased any portion of the Class B Initial Invested Amount or
any Additional Class B Invested Amount on such Purchase Date,
whether such Class B Purchaser was a Conduit Purchaser, a
Committed Purchaser or a Liquidity Purchaser and the portion of
the Class B Initial Invested Amount or Additional Class B
Invested Amount purchased by such Class B Purchaser.
(h) In no event shall a Committed Purchaser be
required on any date to purchase an Additional Class B Invested
Amount which would result in its Percentage Interest of the
Class B Principal Balance, determined after giving effect to such
purchase, exceeding its Commitment, and in no event shall a
Liquidity Purchaser be required on any date to purchase an
Additional Class B Invested Amount which would result in its
Percentage Interest of the Class B Principal Balance, determined
after giving effect to such purchase, exceeding its Adjusted
Commitment. In no event may any Additional Class B Invested
Amount be offered for purchase hereunder or under Section 6.15 of
the Supplement, nor shall any Class B Purchaser be obligated to
purchase any Additional Class B Invested Amounts, to the extent
that, after giving effect to such purchase, the Class B Principal
Balance would exceed the Class B Purchase Limit.
(i) The Class B Purchasers in each Purchaser Group
hereby direct that the Class B Certificates be registered in the
name of the Agent for such Purchaser Group, as nominee on behalf
of the Class B Purchasers in such Purchaser Group from time to
time hereunder.
(j) The Class B Certificates and interest thereon
shall be paid as provided in the Pooling and Servicing Agreement,
and each Agent shall allocate to the Class B Owners in its
Purchaser Group each payment in respect of the Class B
Certificates received by such Agent in its capacity as Class B
Certificateholder as provided herein. Payments in reduction of
the Class B Invested Amount shall be allocated and applied 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 Purchaser may
agree upon in writing from time to time with such Agent and the
Transferor; provided that from and after a Partial Expiration
Date until the earlier to occur of (i) the Purchase Termination
Date for all Class B Purchasers and (ii) the date on which (A)
the aggregate amount of payments in reduction of the Class B
Principal Balance made after such Partial Expiration Date equals
(B) the aggregate Class B Exiting Purchaser Amortization Amount
for such Partial Expiration Date, payments on a Class B
Certificate in reduction of the portion of the Class B Principal
Balance evidenced by such Class B Certificate shall be allocated
and applied to Class B Owners of such Class B Certificate which
are Exiting Purchasers pro rata based on their respective
Percentage Interests of the Class B Principal Balance. Payments
of interest in respect of the portion of the Class B Principal
Balance evidenced by a Class B Certificate shall be allocated and
applied to Class B Owners of such Class B Certificate pro rata
based upon the respective amounts of interest owed to them,
determined as provided in Section 2.3 and the Issuance
Supplement.
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 each Agent and the
Facility Agent, reduce the Class B Purchase Limit. 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 each Agent and the Facility Agent
consents). Reductions of the Class B Purchase Limit pursuant to
this subsection 2.2(a) shall be allocated to the Commitment of
each Committed Purchaser and the Maximum Purchase Amount of each
Conduit Purchaser, pro rata based on the Purchaser Percentage
represented by such Commitment or Maximum Purchase Amount. Any
such reduction in the Maximum Purchase Amount of the Conduit
Purchaser in a Purchaser Group shall automatically result in a
reduction of the aggregate Commitments of the Liquidity Providers
in such Purchaser Group, which shall be allocated among such
Liquidity Purchasers pro rata based on their respective Liquidity
Percentages.
(b) On the Purchase Termination Date for a Committed
Purchaser or Liquidity Purchaser, the Commitment of such Class B
Purchaser shall be automatically reduced to zero.
(c) The Class B Purchase Limit may be increased from
time to time through the increase of the Commitment of one or
more Committed Purchasers or Liquidity Purchasers; provided,
however, that no such increase shall have become effective unless
(i) the Agent for each applicable Purchaser Group, the Facility
Agent and the Transferor shall have given their written consent
thereto, (ii) in the case of an increase in the Commitment of a
Liquidity Purchaser in a Purchaser Group, the Conduit Purchaser
in such Purchaser Group shall have consented thereto and agreed
to increase its Maximum Purchase Amount, (iii) such increasing
Committed Purchaser or Liquidity Purchaser shall have entered
into an appropriate amendment or supplement to this Agreement
reflecting such increased Commitment and (iv) such conditions, if
any, as the Agent for such Purchaser Group or such Conduit
Purchaser shall have required in connection with its consent
(including the delivery of legal opinions with respect to such
Class B Purchaser and, in the case of a Liquidity Purchaser, the
agreement of such Liquidity Purchaser to become a Support Party
for the Conduit Purchaser in its Purchaser Group and approvals
from rating agencies which rate debt issued by such Conduit
Purchaser) shall have been satisfied. The Transferor may also
increase the Class B Purchase Limit from time to time by adding
additional Committed Purchasers or Liquidity 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 Facility Agent, each Agent and the Transferor become a
party to this Agreement as an initial or an additional Conduit
Purchaser or an initial or an additional Committed Purchaser or
Liquidity 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 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 Conduit Purchaser, a Liquidity Purchaser or a
Committed Purchaser, (C) if such Person will be a Liquidity
Purchaser or a Committed Purchaser, its Commitment and Commitment
Expiration Date, (D) if such Person is a Conduit Purchaser, its
Maximum Purchase Amount and the identity of the Liquidity
Purchasers in its Purchaser Group and their respective initial
Liquidity Percentages, (E) if such Person is a Liquidity
Purchaser, the Conduit Purchaser for which it is acting as such,
(F) the applicable Purchaser Group for such Person, (G) if such
Purchaser Group is a new Purchaser Group, the name of the Agent
therefor (which shall be a party to such Joinder Supplement), and
(H) the other information provided for in such form of Joinder
Supplement. Upon its receipt of a duly executed Joinder
Supplement, the Facility Agent shall on the effective date
determined pursuant thereto give notice of such effectiveness to
each Agent, the Transferor, the Servicer and the Trustee, and the
Servicer will provide notice thereof to each Rating Agency (if
required). It shall be a condition to the effectiveness of any
Joinder Supplement for an additional Class B Purchaser after the
Closing Date that each existing Class B Purchaser sell to the
additional Class B Purchaser and that the additional Class B
Purchaser purchase from each applicable existing Class B
Purchaser an interest in the Class B Certificates for a purchase
price equal to the portion of the Class B Principal Balance
purchased, so that, after giving effect to such purchase and
sale, (i) the aggregate Percentage Interest of the members of
each Purchaser Group shall be proportionate to the aggregate
Commitments of members of each Purchaser Group, and (ii) the
Percentage Interest of each Committed Purchaser in a Purchaser
Group and of the Conduit Purchaser in such Purchaser Group shall
be proportionate to their respective Commitments or Maximum
Purchase Amount, as applicable (the Percentage Interest of any
Liquidity Purchaser in such Purchaser Group being deemed for such
purpose to be held by such Conduit Purchaser).
(e) The Commitment Expiration Date for any Committed
Purchaser or Liquidity Purchaser may be extended from time to
time to time at the request of the Transferor and with the
consent of such Class B Purchaser, the Facility Agent, the Agent
for the applicable Purchaser Group and, in the case of a
Liquidity Purchaser, the related Conduit Purchaser; provided that
no such extension shall become effective if, prior to the
effective date thereof, a Termination Event shall have occurred.
Any Committed Purchaser or Liquidity Purchaser shall become an
"Exiting Purchaser" after its scheduled Commitment Expiration
Date unless such date has been extended. If (i) the Transferor,
not more than 180 and no less than 90 days prior to a Commitment
Expiration Date for a Committed Purchaser or Liquidity Purchaser,
has requested such Class B Purchaser (by notice to such Class B
Purchaser with a copy to the Agent for its Purchaser Group, the
Facility Agent and, in the case of a Liquidity Purchaser, to its
related Conduit Purchaser), to extend such Commitment Expiration
Date to the date which is 364 days after the effective date
requested by the Transferor (the "Extension Date"), which shall
not be earlier than 60 days after the date of such request nor
later than the Commitment Expiration Date then in effect,
(ii) such Committed Purchaser or Liquidity Purchaser, as
applicable, shall not have notified the Transferor, the Agent for
its Purchaser Group, the Facility Agent and, in the case of a
Liquidity Purchaser, its related Conduit Purchaser of its
willingness in its sole discretion to so extend its Commitment
Expiration Date at least 30 days (such 30th day, the "Extension
Notice Deadline") prior to the proposed Extension Date, and
(iii) no Termination Event shall have occurred, such Committed
Purchaser or Liquidity Purchaser, as applicable, shall be a
"Dissenting Purchaser" from and after such Extension Notice
Deadline.
(f) Promptly after an Extension Notice Deadline, the
Agent for a Purchaser Group containing a Dissenting Purchaser
shall promptly notify each other Class B Purchaser in such
Purchaser Group, each other Agent (which shall thereupon notify
each Class B Purchaser in its Purchaser Group), the Facility
Agent, the Transferor and the Servicer of the identity of each
Dissenting Purchaser in such Agent's Purchaser Group and the
amount of its Commitment. Either such Agent or the Transferor,
with the consent of such Agent and, if the Dissenting Purchaser
is a Liquidity Purchaser, each affected Conduit Purchaser, may
(but shall not be required to) request that one or more other
Class B Purchasers, or another entity acceptable to such Agent
and the Facility Agent in their reasonable discretion, and, if
the Dissenting Purchaser is a Liquidity Purchaser, each affected
Conduit Purchaser in its sole discretion, 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 applicable 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.
2.3 Calculation of Interest, Fees, Expenses, Payments,
Etc. (a) SRPC agrees to pay to each Agent for the account of the
Class B Purchasers in its Purchaser Group the Class B Program
Fees, the Class B Utilization Fees 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 initial Agent,
the Facility Agent and the initial Class B Purchasers all
reasonable costs and expenses in connection with 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, including the
reasonable fees and out-of-pocket expenses of counsel for the
initial Agent, the Facility Agent and each of the initial Class B
Purchasers with respect thereto. SRI further agrees to pay to
each 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
administration (including any requested amendments, waivers or
consents of any of the Related Documents or Support Facilities)
hereof or of any of the Related Documents or Support Facilities
and the other documents delivered thereunder or in connection
therewith.
(c) SRI agrees to pay to each 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 hereof or of any of the Related
Documents or Support Facilities 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 1999-1,
and agrees to save each Class B Purchaser and 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.
(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. Interest calculated by reference to the
Corporate Base Rate shall be calculated on the basis of a 365- or
366-day year, as applicable, for the actual days elapsed.
(f) Each Class B Purchaser shall be allocated the
share of interest on the Class B Principal Balance for each
Interest Accrual Period which is determined for its Percentage
Interest thereof pursuant to Section 4(a) of and Exhibit B-3 to
the Issuance Supplement.
At or before 5:00 p.m., New York City time, on
each Certificate Rate Determination Date, each Conduit Purchaser
shall notify the Agent for its Purchaser Group of (i) the
Commercial Paper Rate, if applicable, in effect for the related
Interest Accrual Period, and (ii) the date on which the
Alternative Rate became applicable to its Invested Percentage of
the Covered Portion of the Class B Principal Balance or a portion
thereof pursuant to the Issuance Supplement. Such notification
may be based on such Conduit Purchaser's estimate of the
Commercial Paper Rate if the actual rate is not then known to
such Conduit Purchaser, and in such case, such Conduit Purchaser
shall notify such Agent at or before 12:00 noon, New York City
time, on the following Certificate Rate Determination Date of the
amount of any variation between interest payable to such Conduit
Purchaser for the applicable Interest Accrual Period based on
such estimate and interest which should have been payable to such
Conduit Purchaser for such Interest Accrual Period based on its
final determination of the applicable Commercial Paper Rate. The
amount of any shortfall in interest based on such variation shall
be deferred (without interest thereon) and be included in the
portion of Class B Interest payable to such Conduit Purchaser for
the following Interest Accrual Period, and the amount of any
overpayment of interest to such Conduit Purchaser based on such
variation shall be credited (without interest thereon), dollar
for dollar, against the portion of Class B Interest otherwise
payable to such Conduit Purchaser for the following Interest
Accrual Period. Each determination by the Conduit Purchaser of
its applicable Commercial Paper Rate pursuant to this Agreement
shall be conclusive and binding on the Class B Purchasers, the
Agents, the Transferor, the Servicer and the Trustee in the
absence of manifest error. In the event that a Conduit Purchaser
issues Commercial Paper Notes in good faith in order to prefund
the purchasing or maintaining of its Percentage Interest of the
Class B Principal Balance hereunder, it is understood that the
portion of the Commercial Paper Rate attributable to such
Commercial Paper Notes, as otherwise determined in accordance
with the Issuance Supplement, shall be reduced to give effect to
any earnings (net of any investment losses and expenses) received
on a cash basis by such Conduit Purchaser from the temporary
investment of the proceeds thereof prior to the application of
such proceeds to fund its purchasing or maintaining such
Percentage Interest.
Each Agent shall notify the Servicer on each
Certificate Rate Determination Date of the Commercial Paper Rate,
the Alternative Rate and the Risk Rate, as applicable, and the
Class B Interest for the related Interest Accrual Period
substantially in the form of Exhibit B-3A to the Issuance
supplement (or such other form which may be mutually acceptable
to the applicable Agent and the Servicer from time to time). For
such purposes, each Agent may rely conclusively on notices from
the Conduit Purchasers pursuant to this subsection as to the
interest rate or rates from time to time applicable to its
Percentage Interest of the Class B Principal Balance. Such
notification from an Agent may be based on the Conduit
Purchaser's estimate of the Commercial Paper Rate as provided to
such Agent and upon estimates of the Class B Interest if the
actual amount is not then known to such Agent. In any such case,
such Agent shall notify the Servicer on or before the following
Certificate Rate Determination Date of the amount of any
variation between the estimated Class B Interest and the actual
Class B Interest for the preceding Interest Accrual Period.
Subject to any Estimated Interest Adjustment, each determination
of the Commercial Paper Rate, the Alternative Rate, the Risk Rate
and the Class B Interest by any Agent shall be conclusive and
binding on the Class B Purchasers, the Transferor, the Servicer
and the Trustee in the absence of manifest error.
(g) All payments to be made hereunder or under the
Pooling and Servicing Agreement, 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 in United States dollars and in
immediately available funds (i) in the case of payments to the
Facility Agent, to its account specified in subsection 9.2(b)
hereof or (ii) in the case of payments to a Class B Purchaser or
an Agent in a Purchaser Group, to such Agent's account specified
in subsection 9.2(b) hereof. Any such payment received 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 an Agent, the
Facility Agent or a Class B Purchaser or (ii) such Agent, the
Facility Agent or such 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 such
Agent, the Facility Agent or such Class B Purchaser, as the case
may be.
(h) 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 Agent in its
Purchaser Group of a written request therefor and the submission
by such Agent to the Transferor and the Servicer of such written
request therefor (with a copy to the Facility Agent), the
Transferor (subject to subsection 9.11(a) hereof) shall pay to
the such 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.
(bi 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 entity 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 entity could have achieved but for such
Regulatory Change (taking into consideration such Class B
Purchaser's or such entity'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 Agent in its Purchaser Group of a
written request therefor and submission by such Agent to the
Transferor and the Servicer of such written request therefor
(with a copy to the Facility Agent), the Transferor (subject to
subsection 9.11(a) hereof) shall pay to the such Agent for the
account of such Class B Purchaser such additional amount or
amounts as will compensate such Class B Purchaser or such entity
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.
(ci 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).
(di Each Class B Purchaser claiming increased amounts
described in subsection 2.4(a) or 2.4(b) will furnish to the
Agent for its Purchaser Group (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 such Agent shall deliver a copy thereof to the Transferor,
the Servicer and the Facility Agent. 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 Agents 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 Agent (as the case may be) or the gross receipts or income of
the Class B Purchaser, the Facility Agent or the 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 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 such 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 an Agent
hereunder or under the Pooling and Servicing Agreement, then
after submission by any Class B Purchaser to the Agent for its
Purchaser Group (in the case of an amount payable to a Class B
Purchaser) and such Agent to the Transferor and the Servicer of a
written request therefor (with a copy thereof to the Facility
Agent), or after submission by the Facility Agent or any Agent to
the Transferor or the Servicer of a written request therefor with
a copy thereof to the Facility Agent (in the case of an Agent),
the amounts so payable to such Class B Purchaser, the Facility
Agent or such Agent, as applicable, shall be increased and the
Transferor shall be liable to pay to 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 such 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 such 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
an Agent, as promptly as possible thereafter the Servicer shall
send to the applicable Agent, on behalf of such Class B Purchaser
(if applicable), or to the Facility Agent, 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 Facility Agent or to the applicable Agent, on behalf
of itself 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 such Agent on
behalf of such Class B Purchaser or for its own account, as
applicable, any incremental taxes, interest or penalties that may
become payable by the Facility Agent or by such Class B Purchaser
or Agent, as applicable, as a result of any such failure. In
addition to the foregoing, the Transferor hereby agrees, subject
to subsection 9.11(a), to indemnify and hold harmless, on an
after-tax basis, each Class B Purchaser and Agent and the
Facility Agent from and against any and all Taxes (including
Excluded Taxes) imposed on such party solely by reason of any tax
treatment of the Class B Certificates that is inconsistent with
the characterization thereof as indebtedness for federal, state
and local income tax purposes or by reason of the failure of the
Transferor or the owner of the Exchangeable Transferor
Certificate to file any federal, state or local income tax
returns or reports on the basis that Class B Certificates are
indebtedness for federal, state and local income tax purposes.
(b0 A Class B Purchaser or Agent or the Facility Agent
claiming increased amounts under subsection 2.5(a) for Taxes paid
or payable by such Class B Purchaser or Agent or the Facility
Agent, as applicable, will furnish to the Transferor and the
Servicer 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. Any such
certificate of a Class B Purchaser, the Facility Agent or an
Agent shall be conclusive absent manifest error. Failure on the
part of any Class B Purchaser, the Facility Agent or any 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 such Agent, as
the case may be, to demand compensation with respect to such
period. All such amounts shall be due and payable to the Facility
Agent or to such Agent on behalf of 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 1999-1
Termination Date).
(c0 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 Agent for its Purchaser Group (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 Agent for its Purchaser Group 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 applicable 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 applicable 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.
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 each Agent, the
Facility Agent and each Class B Purchaser and any directors,
officers, employees, agents, attorneys, auditors or accountants
of each 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 1999-1 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 an 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 such 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 1999-1 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).
(bi 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 for its Purchaser Group and
such 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, or (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
Indemnitors 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 include an unconditional release of such Indemnitee from all
liability arising out of such claim, action, suit or proceeding.
(ci 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.
(di (i) In the event that for any reason, (A) the
basis for calculation of interest on any Conduit Purchaser's
Percentage Interest of the Class B Principal Balance shall change
from the Commercial Paper Rate to the Alternative Rate, or (B)
any Conduit Purchaser receives any repayment of its share of the
Class B Principal Balance, and the date of such change or of such
repayment is not the maturity date for all Commercial Paper Notes
allocated by such Conduit Purchaser to funding its purchase or
maintenance of the affected portion of its Percentage Interest of
the Class B Principal Balance, or (ii) in the event that for any
reason, (A) the basis for calculation of interest on any Class B
Purchaser's Percentage Interest of the Class B Principal Balance
shall change from the Alternative Rate to the Risk Rate, (B) the
basis for calculation of the Alternative Rate shall change from
the Class B Adjusted Eurodollar Rate to the Corporate Base Rate,
or (C) any Class B Purchaser receives any repayment of its share
of the Class B Principal Balance which bears interest calculated
by reference to the Class B Adjusted Eurodollar Rate and the date
of such repayment is not a Distribution Date, then in any such
case the Transferor agrees to indemnify each affected Class B
Purchaser against, and to promptly pay on demand directly to such
Class B Purchaser the amount equal to any loss or reasonable out-
of-pocket expense suffered by such Class B Purchaser as a result
of such change or such repayment, including any loss, cost or
expense suffered by reason of its issuance of Commercial Paper
Notes (in the case of a Conduit Purchaser) or the incurrence of
other obligations allocated by such Class B Purchaser to its
funding or the maintenance of its funding of its share of the
Class B Principal Balance, or deploying the funds prepaid or
repaid in amounts which correspond to its share of the Class B
Principal Balance. In the event that for any reason (other than
a default by a Committed Purchaser or Liquidity Purchaser
hereunder) the purchase of the entire Class B Initial Invested
Amount does not occur on the Closing Date or, after notice of a
purchase of an Additional Class B Invested Amount has been given
pursuant to subsection 2.1(c), the purchase of the entire amount
of such Additional Class B Invested Amount does not occur on the
applicable Purchase Date, then in any such case SRI agrees to
indemnify each affected Class B Purchaser against, and to
promptly pay on demand directly to such Class B Purchaser the
amount equal to any loss or reasonable out-of-pocket expense
suffered by such Class B Purchaser as a result of such change or
such repayment, including any loss, cost or expense suffered by
reason of its issuance of Commercial Paper Notes (in the case of
a Conduit Purchaser) or the incurrence of other obligations
allocated by such Class B Purchaser to its funding or the
maintenance of its funding of its share of the Class B Principal
Balance (including in liquidating or employing deposits acquired
to fund or maintain the funding of its share of the Class B
Principal Balance which would have borne interest by reference to
the Adjusted Eurodollar Rate). A statement setting forth in
reasonable detail the calculations of any additional amounts
payable pursuant to this Section submitted by a Class B Purchaser
or Agent on its behalf, to the Transferor or SRI, as applicable,
and the Servicer and shall be conclusive absent manifest error.
The obligations of the Transferor under this subsection 2.6(d)
are subject to subsection 9.11(a) hereof.
(ei Subject to 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, any 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:
(ai 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;
(bi the Master Pooling and Servicing Agreement, the
Supplement and the Issuance 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;
(ci the Receivables Purchase Agreement and the
Receivables Transfer 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;
(di Class C Certificates, Class D Certificates and
Class E Certificates shall have been duly issued in accordance
with the Pooling and Servicing Agreement which have a Class C
Initial Invested Amount, Class D Initial Invested Amount and
Class E Initial Invested Amount which aggregates at least 19% of
the Initial Invested Amount;
(ei arrangements satisfactory to the Class B
Purchasers shall have been made for the repayment and defeasance
in full of the Trust's Series 1993-1 Certificates, Series 1995-1
Certificates and Series 1997-1 Certificates and the Transferor's
12.5% Series B Trust Certificate-Backed Notes;
(fi 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 initial Agent shall have been made for
the payment of amounts required to be paid by SRPC pursuant to
subsection 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;
(gi with respect to each Conduit Purchaser, its
Support Facilities shall be in full force and effect; and
(hi the initial 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 such Agent:
(i0 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 (f),
inclusive, above;
(ii0 a copy of (A) the charter and by-laws of
SRPC, SRI and Granite, certified by its authorized officer,
(B) 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, (C) good standing certificates from the
appropriate Governmental Authority as of a recent date with
respect to each of SRPC, SRI and Granite and (D) resolutions
of the Board of Directors (or an authorized committee
thereof) of each of SRPC, SRI and Granite with respect to
the Related Documents to which it is party, certified by its
authorized officer;
(iii0 the favorable written opinions of counsel
for SRPC, SRI and Granite addressed to the Agents, the
Facility Agent, the Class B Purchasers and the Support
Parties, or accompanied by a letter providing that the
Agents, the Facility Agent, the Class B Purchasers and the
Support Parties 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 and
nonconsolidation matters, tax matters and such other matters
as the initial Agent may request;
(iv0 [reserved];
(v0 evidence of the due execution and delivery by
the Trustee of the Related Documents to which it is party;
(vi0 an executed copy of the Supplement and the
Issuance Supplement and a conformed copy of the Master
Pooling and Servicing Agreement, the Receivables Purchase
Agreement and the Receivables Transfer Agreement;
(vii0 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 1999-1 (each such opinion, unless
otherwise agreed to by the initial Agent, to be addressed to
such Agent, on behalf of itself and the Class B Purchasers
in its Purchaser Group, and to the Facility Agent or
accompanied by a letter providing that such Agent, on behalf
of itself and the Class B Purchasers in its Purchaser Group,
the Facility Agent and the Support Parties may rely on such
opinion as if it were addressed to it), and such additional
documents, instruments, certificates or letters as such
Agent may reasonably request;
(viii0 the duly executed Class B Certificate(s)
registered in the name of the initial Agent as nominee on
behalf of the Class B Owners;
(ix0 evidence satisfactory to the initial Agent
that the Class A-1 Certificates and the Class A-2
Certificates are rated Aaa by Moody's and AAA by Fitch IBCA,
Inc. and that the Class B Certificates are rated not less
than A1 by Moody's and not less than A by Fitch IBCA, Inc.;
and
(x0 evidence satisfactory to each Conduit
Purchaser that Moody's 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 Conduit Purchaser, without giving effect to any
increase in any letter of credit or other enhancement
provided to such Conduit Purchaser (other than liquidity
support provided to such Conduit 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:
(ai the Transferor shall have timely delivered a
notice of purchase pursuant to subsection 2.1(c) of this
Agreement;
(bi 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;
(ci (i) all interest, fees, expenses and all other
amounts then due and payable to any Agent or Class B Purchaser or
to the Facility Agent hereunder (including any amounts owed under
Sections 2.3, 2.4, 2.5 or 2.6, but excluding the Class B
Principal Balance) shall have been paid, and (ii) 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;
(di after giving effect to such purchase of Additional
Class B Invested Amount, (i) the Class B Principal Balance shall
not exceed the Class B Purchase Limit, and (ii) the aggregate
Class B Principal Balance, minus the aggregate unpaid portion of
all Class B Exiting Purchaser Amortization Amounts, shall not
exceed the aggregate Commitments of the Committed Purchasers and
Liquidity Purchasers;
(ei after giving effect to such purchase, the sum of
the Class C Invested Amount, the Class D Invested Amount and the
Class E Invested Amount shall equal not less than 19% of the
Invested Amount on the applicable Purchase Date;
(fi there shall exist no unreimbursed Class E Investor
Charge-Offs;
(gi the Class A-1 Certificates and the Class A-2
Certificates remain rated Aaa by Moody's and AAA by Fitch IBCA,
Inc. and the Class B Certificates remain rated not less than A1
by Moody's and not less than A by Fitch IBCA, Inc;
(hi 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;
(ii the Additional Class B Invested Amount, when
aggregated with additional invested amounts being purchased on
such Purchase Date pursuant to the Class A-1 Purchase Agreement
and the Class A-2 Purchase Agreement, shall equal a minimum
amount of $1,000,000 and be shall be in an integral multiple of
$250,000;
(ji after giving effect to such purchase of Additional
Class B Invested Amount, no more than two changes in the Class A
Invested Amount or the Class B Invested Amount shall have
occurred in any calendar week;
(ki with respect to each Conduit Purchaser, its
Support Facilities shall be in full force and effect; and
(li in the case of each Increase Date, the Transferor
shall have delivered to the Facility Agent and each Agent an
Officer's Certificate dated such Purchase Date certifying (i)
that the conditions described in clauses (a) through (j) above
have been satisfied and (ii) that based on the facts known to the
officer signing such Officer's Certificate at such time, in the
reasonable belief of the Transferor, the purchases of the
Additional Class B Invested Amounts and any other purchases with
respect to the Series 1999-1 Certificates to be purchased on such
Purchase Date will not cause a Pay Out Event, a Series 1999-1 Pay
Out Event or a Mandatory Partial Amortization Event or an event
that, after the giving of notice or the lapse of time, would
constitute an Pay Out Event, a Series 1999-1 Pay Out Event or a
Mandatory Partial Amortization Event to occur.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of SRPC. SRPC
repeats and reaffirms to the Class B Purchasers, the Agents and
the Facility 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, each Agent
and Class B Purchaser and the Facility Agent that, as of the date
hereof:
(ai 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.
(bi 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 1999-1 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).
(ci 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.
(di 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.
(ei 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 1999-1 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.
(fi SRPC is not insolvent or the subject of any
insolvency or liquidation proceeding. The financial statements
of SRPC delivered to each 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 each Agent, there has not been
any material adverse change in the condition (financial or
otherwise) of SRPC.
(gi 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.
(hi No Trust Pay Out Event, Series 1999-1 Pay Out
Event, Mandatory Partial Amortization 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.
(ii 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.
(ji The Receivables conveyed by SRPC to the Trust
under the Pooling and Servicing Agreement are in an aggregate
amount, determined as of November 9, 1999, of $340,005,003,
consisting of $319,054,670 of Principal Receivables and
$20,950,333 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. As of
the Closing Date, after giving effect to the payments and
defeasances contemplated by subsection 3.1(e), there will be no
Investor Certificates of the Trust, other than the Series 1999-1
Certificates, outstanding.
(ki 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 1999-1 Certificates set forth in the Pooling and Servicing
Agreement have been satisfied and the Series 1999-1 Certificates
have been duly issued by the Trust.
(li 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 1999-1 Certificates
in a manner that would require the registration under the
Securities Act of the offering of the Series 1999-1 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 1999-1 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-1 Certificates, Class A-2
Certificates, Class C Certificates and Class D Certificates in
their respective investment letters, the offer and sale of the
Series 1999-1 Certificates are transactions which are exempt from
the registration requirements of the Securities Act.
(mi All written factual information heretofore
furnished by SRPC to, or for delivery to, any Agent or Class B
Purchaser 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, the Agents and
the Facility Agent the representations and warranties of the
Servicer set forth in Section 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, each Agent
and Class B Purchaser and the Facility Agent that, as of the date
hereof:
(ai 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.
(bi 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).
(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 1999-1 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 any Agent or Class B Purchaser 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
Agents and the Class B Purchasers through the Closing Date, there
has not been any material adverse change in the condition
(financial or otherwise) of SRI, other than changes (if any)
disclosed in Stage's filings with the SEC pursuant to the
Securities Exchange Act of 1934, as amended, or disclosed in a
writing addressed to the Facility Agent and the initial Agent.
(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 1999-1 Pay Out
Event, Mandatory Partial Amortization 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, 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.
(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 1999-1 Certificates set forth in the Pooling and Servicing
Agreement have been satisfied and the Series 1999-1 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) 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) The Servicer and the Transferor have each (i)
initiated a review and assessment of all areas within its
business and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the
risk that computer applications used by the Servicer or the
Transferor (or suppliers, vendors and customers) may be unable to
recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999 (the
"Year 2000 Problem"), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to
date, implemented that plan in accordance with that timetable.
Based on the foregoing, the Servicer and the Transferor each
believe that all computer applications (including those of its
suppliers, vendors and customers) that are material to its
business and operations are reasonably expected on a timely basis
to be able to perform properly date-sensitive functions for all
dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so could
not reasonably be expected (a) to have a material adverse effect
on the financial condition or operations of the Servicer or the
Transferor or on the transactions documented under this Agreement
or any Related Document, or (b) to result in a Termination Event.
Each of the Transferor and the Servicer (i) has completed a
review and assessment of all computer applications (including,
but not limited to those of its suppliers, vendors, customers and
any third party servicers), which are related to or involved in
the origination, collection, management or servicing of the
Accounts and the Receivables (the "Contract Systems") and (ii)
has determined that such Contract Systems are Year 2000
Compliant. The costs of all assessment, remediation, testing and
integration related to the plans of the Servicer and the
Transferor for becoming Year 2000 Compliant will not have a
material adverse effect on the financial condition or operations
of the Servicer or the Transferor.
(o) All written factual information heretofore
furnished by SRPC, SRI, Granite or Stage to, or for delivery to,
any Agent or Class B Purchaser for purposes of or in connection
with this Agreement, including information relating to the
Accounts, the Receivables and the credit card business of SRPC,
Granite 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 Agents, the
Facility Agent and the Class B Purchasers. Each Agent, the
Facility Agent and each Committed Purchaser and the Liquidity
Purchaser 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 Purchaser Percentage or Liquidity 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 such 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 such 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 such 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 such
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.
SECTION 5. COVENANTS
5.1 Covenants of SRPC and SRI. 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
Purchase 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
each Agent (i) a copy of each opinion, certificate, report,
statement, notice or other communication (other than investment
instructions) relating to the Series 1999-1 Certificates which is
furnished by or on behalf of either of them to
Certificateholders, to any Rating Agency or to the Trustee, a
copy of each notice, demand or other communication relating to
the Series 1999-1 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 1999-1 Certificateholders (to the extent such notice,
demand or communication relates to the Accounts, the Receivables,
any Servicer Default, any Trust Pay Out Event, any Series 1999-1
Pay Out Event or any Mandatory Partial Amortization Event); and
(ii) such other information, documents records or reports
respecting the Trust, the Accounts, the Receivables, the
Transferor or the Servicer as any Agent may from time to time
reasonably request without unreasonable expense to the Transferor
or the Servicer;
(c) the Servicer shall furnish to each 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 (which in the case of the
reports pursuant to Section 3.6, shall be addressed to the
Facility Agent and each Agent);
(d) the Servicer shall promptly furnish to each Agent
a copy, addressed to such 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 each 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 such
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;
(f) the Servicer shall furnish to each 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 1999-1 Certificates pursuant to Section 12.2 of the
Pooling and Servicing Agreement, unless the Class B Purchasers,
each Agent and the Facility 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 each Agent and the Facility 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 any Agent, the Facility 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 each Agent (including
affording reasonable inspection rights, assisting in the
preparation of syndication material, attending investor meetings,
providing access to its officers and providing reliance letters
with respect to opinions delivered in connection with the
issuance of the Series 1999-1 Certificates on the Closing Date)
in its effort to syndicate the Commitments;
(j) the Servicer shall furnish to each Agent, promptly
after the occurrence of any Servicer Default, Termination Event,
Trust Pay Out Event, Mandatory Partial Amortization Event or
Series 1999-1 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,
Mandatory Partial Amortization Event or Series 1999-1 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 the 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, the Supplement, or the Issuance Supplement
unless (i) such amendment, waiver or modification shall not, as
evidenced by an Officer's Certificate of the Transferor delivered
to each Agent, adversely affect in any material respect the
interests of any 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 Conduit
Purchaser without giving effect to any increase in any letter of
credit or other enhancement provided to such Conduit Purchaser;
and (ii) all of the applicable provisions of Section 13.1 of the
Pooling and Servicing Agreement have been complied with;
(m) the Transferor and the Servicer shall execute and
deliver to each 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 any 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 any
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;
(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, (ii)
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 (iii) 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;
(p) The Transferor and the Servicer shall not permit
any newly issued Series of Investor Certificates (or, with
respect to a prefunded Series, interests therein) other than
Series 1999-1 to be issued by the Trust or the terms of any new
class or subclass of Series 1999-1 Certificates other than the
Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates and
Class E Certificates to be specified pursuant to any amendment or
modification to the Issuance Supplement or any additional
issuance supplement, the proceeds of which newly issued Series or
such new class will be applied to reduce the Class A Invested
Amount or the Class B Invested Amount (each, a "New Issuance"),
unless
(i) [reserved];
(ii) such proceeds are applied in accordance
with subsection 5(b)(iii) of the Issuance Supplement;
(iii) the Transferor shall have a delivered
(A) notice of the estimated date and amount of such New
Issuance to the Facility Agent and each Agent (which shall
promptly forward a copy of such notice to each Class B
Purchaser in its Purchaser Group) not less than 20 days
prior to such estimated date, and (B) notice of the actual
date and amount of such New Issuance to the Facility Agent
and each Agent (which shall promptly forward a copy of such
notice to each Class B Purchaser in its Purchaser Group) not
less than three Business Days prior to such date;
(iv) on the date on which the Transferor has sold
such New Issuance, all interest, fees, expenses and all
other amounts then due and payable to any Agent or Class B
Purchaser or to the Facility Agent hereunder (including any
amounts owed under Sections 2.3, 2.4, 2.5 or 2.6, but
excluding the Class B Principal Balance) shall have been
paid;
(v) on the date on which the Transferor has sold
such New Issuance, no Termination Event shall have occurred
and be continuing, and there shall exist no unreimbursed
Class E Investor Charge-Offs;
(vi) the Facility Agent shall have received
confirmation that, after giving effect to such New Issuance,
the Class A-1 Certificates and the Class A-2 Certificates
remain rated Aaa by Moody's and AAA by Fitch IBCA, Inc. and
the Class B Certificates remain rated not less than A1 by
Moody's and not less than A by Fitch IBCA, Inc;
(vii) the conditions set forth in Section 6.15
of the Pooling and Servicing Agreement or in the Issuance
Supplement to the New Issuance shall have been satisfied;
and
(viii) on the date on which the Transferor has
sold such New Issuance, the Transferor shall have delivered
to the Facility Agent and each Agent an Officer's
Certificate dated such date certifying (A) that the
conditions described in clauses (i) through (viii) above
have been satisfied and (B) that based on the facts known to
the officer signing such Officer's Certificate at such time,
in the reasonable belief of the Transferor, the New Issuance
will not cause a Pay Out Event, a Series 1999-1 Pay Out
Event or a Mandatory Partial Amortization Event or an event
that, after the giving of notice or the lapse of time, would
constitute an Pay Out Event, a Series 1999-1 Pay Out Event
or a Mandatory Partial Amortization Event to occur.
If, as the result of a New Issuance, the Class A-2 Invested
Amount is reduced to zero, the Transferor agrees to terminate all
commitments under the Class A-2 Purchase Agreement at the request
of the Facility Agent in its discretion.
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 each 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, Granite, 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 each Agent of its intention to make any such
disclosure prior to making such disclosure.
6.2 Covenants of Class B Purchasers. Each Agent, the
Facility Agent and each Class B Purchaser, severally and with
respect to itself only, covenants and agrees that any information
obtained by such 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 an Agent
hereunder may in all cases be distributed by such Agent or the
Facility Agent to the Class B Purchasers), except that such
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 such Agent, the Facility Agent or such Class B
Purchaser, (iii) to the extent such information was available to
such Agent, the Facility Agent or such Class B Purchaser on a
nonconfidential basis prior to its disclosure to such 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 such 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 Conduit Purchaser, to
placement agents and providers of liquidity and credit support
who agree to hold such information in confidence and to rating
agencies; provided, that, in the case of clause (vi) above, such
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 Agent for its Purchaser
Group as the agent of such Class B Purchaser under this
Agreement, and each such Class B Purchaser irrevocably authorizes
such 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 such 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, no Agent shall 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 any Agent.
(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
hereunder, 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 hereunder and to exercise
such powers and perform such duties thereunder and hereunder as
are expressly granted to the Facility Agent by the terms of the
Pooling and Servicing Agreement or hereby, 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 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 Facility
Agent.
7.2 Delegation of Duties. Each 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 any 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 any 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, Granite, 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 any
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, Granite, the Transferor, the
Servicer or the Trustee to perform its obligations thereunder.
Neither any 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, Granite, the Transferor, the Servicer, the
Trustee or the Trust.
7.4 Reliance by Agent. Each 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 any Agent or the Facility Agent),
independent accountants and other experts selected by any Agent
or the Facility Agent. Each 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. Each 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.
7.5 Notices. No Agent shall be deemed to have
knowledge or notice of the occurrence of any breach of this
Agreement or the occurrence of any Trust Pay Out Event,
Series 1999-1 Pay Out Event, Mandatory Partial Amortization Event
or Termination Event unless such 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 an Agent receives such a notice, such Agent
promptly shall give notice thereof to the Class B Purchasers in
its Purchaser Group. Such 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 an Agent shall have received such
directions, such 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 any 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 any Agent or the Facility Agent hereafter
taken, including any review of the affairs of SRPC, SRI, Stage,
Granite, the Transferor, the Servicer, the Trustee or the Trust
shall be deemed to constitute any representation or warranty by
any Agent or the Facility Agent to any Class B Purchaser. Each
Class B Purchaser represents to each Agent and the Facility Agent
that it has, independently and without reliance upon any 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,
Granite, 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 any 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,
Granite, the Transferor and the Servicer. Except, in the case of
an Agent, for notices, reports and other documents received by
such Agent under Section 5 hereof, neither any 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, Granite, the Transferor or
the Servicer which may come into the possession of any Agent or
the Facility Agent or any of its respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. (i) The Committed Purchasers
and the Liquidity Purchasers agree to indemnify 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 Facility Agent for any such amounts), ratably
according to their respective Commitments (or, if the Commitments
have terminated, Percentage Interests), and (ii) the Committed
Purchasers and the Liquidity Purchasers in each Purchaser Group
agree to indemnify the Agent for such Purchaser Group in its
capacity as such (without limiting the obligation (if any) of
SRPC, SRI, the Transferor, the Trust or the Servicer to reimburse
such Agent for any such amounts), ratably according to their
respective Commitments (or, if the Commitments have terminated,
Percentage Interests), in each case 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 such 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 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 an 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. Each
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, Granite, the
Servicer and the Transferor as though such 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 Conduit Purchasers and in
such capacity acts and may continue to act on behalf of each such
Conduit 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 Conduit Purchaser is party and in various other
capacities relating to the business of any such Conduit Purchaser
under various agreements, and (iii) as agent for other Classes of
Series 1999-1 Certificates. Credit Suisse First Boston in its
capacity as an 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 an Agent
or the Facility Agent other than as expressly provided in this
Agreement. Credit Suisse First Boston may act as an 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) An Agent may resign as Agent
upon ten days' notice to the Class B Purchasers in its Purchaser
Group, the Facility Agent, each other Agent, the Trustee, the
Transferor and the Servicer with such resignation becoming
effective upon a successor agent succeeding to the rights, powers
and duties of such Agent pursuant to this subsection 7.9(a). Any
Agent may resign as Agent upon ten days' notice to the Class B
Purchasers in its Purchaser Group, the Facility Agent and each
other Agent, the Transferor, the Servicer and the Trustee with
such resignation becoming effective upon a successor agent
succeeding to the rights, powers and duties of the Agent pursuant
to this Section 7.9. If an Agent shall resign as Agent under
this Agreement, then (i) Class B Owners in its Purchaser Group
having Percentage Interests aggregating greater than 50% of the
aggregate Percentage Interests of all Class B Owners in such
Purchaser Group, and (ii) Committed Purchasers and Liquidity
Purchasers in its Purchaser Group having Commitments aggregating
greater than 50% of the aggregate Commitments of all Committed
Purchasers and Liquidity Purchasers in such Purchaser Group shall
appoint from among the Committed Purchasers in such Purchaser
Group a successor agent for such Purchaser Group. Any successor
administrative agent or agent shall succeed to the rights, powers
and duties of resigning Agent, and the term "Agent," as
applicable, shall mean such successor agent effective upon its
appointment, and the former Agent's rights, powers and duties as
Agent shall be terminated, without any other or further act or
deed on the part of such former Agent or any of the parties to
this Agreement. After the retiring Agent's resignation as 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 Agent
under this Agreement.
(b) The Facility Agent may resign as Facility Agent
upon ten days' notice to the Class A-1 Purchasers, the Class A-2
Purchasers, the Class B Purchasers, the Trustee, the Transferor,
the Servicer and each Agent 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 Purchasers or Liquidity Purchasers hereunder or the
committed purchasers or liquidity purchasers under the Class A-1
Certificate Purchase Agreement or the Class A-2 Certificate
Purchase Agreement a successor Facility Agent of the Class B
Certificateholders, the Class A-1 Certificateholders and the
Class A-2 Certificateholders; provided that no such appointment
shall be effective unless such successor is also appointed as
successor Facility Agent under the Class A-1 Certificate Purchase
Agreement and the Class A-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.
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 applicable 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.
(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 Agent for its Purchaser Group 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 Agent for its Purchaser Group, 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 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 applicable 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, Granite and Stage which has been delivered to
any 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, Granite, Stage, the Transferor or the Servicer in
connection with such Class B Purchaser's credit evaluation of the
Trust, SRPC, SRI, Granite, 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.
(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
Agent for such Class B Purchaser's Purchaser Group 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
Agent for each Purchaser Group shall maintain a register of each
Participant of Class B Purchasers or such Purchaser Group and the
amount of each of their 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 Agent for the applicable Purchaser
Group. 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 Agent for its Purchaser Group
notice of the consummation of any sale by it of a Participation
and such 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 Agent for its Purchaser Group and in accordance with
applicable law, sell or assign (each, an "Assignment"), to any
Consented Assignee (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 Agent for its Purchaser Group 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. 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, Purchaser Percentages, Commitments and
Maximum Purchase Amounts arising from the Assignment. Upon its
receipt and acceptance of a duly executed Transfer Supplement,
such 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).
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 Agent for the applicable
Purchaser Group 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.
(i) Each Affected Party claiming increased amounts
described in Sections 2.4 or 2.5 shall furnish, through its
related Conduit Purchaser, to the Trustee, the Agent for the
applicable Purchaser Group, the Facility 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 Purchaser is a
Downgraded Purchaser, the related Conduit Purchaser shall have
the right to replace such Liquidity Purchaser with a replacement
Liquidity Purchaser, which replacement purchaser shall succeed to
the rights of such Liquidity Purchaser under this Agreement in
respect of its Commitment as a Liquidity Purchaser, and such
Liquidity Purchaser shall assign such Commitment and its interest
in the Class B Certificates to such replacement Liquidity
Purchaser in accordance with the provisions of this Section 8.1;
provided, that (A) such Liquidity Purchaser shall not be replaced
hereunder with a new investor until such Liquidity Purchaser 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 Purchaser pursuant to
this Agreement, and (ii) if the Liquidity Purchaser to be
replaced is an Agent or the Facility Agent, a replacement Agent
or Facility Agent, as the case may be, shall have been appointed
in accordance with Section 7.9, and the Agent or Facility Agent,
as the case may be, to be replaced shall have been paid all
amounts owing to it as Agent or Facility Agent, as the case may
be, pursuant to this Agreement. For purposes of this subsection,
a Liquidity Purchaser 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,
unless otherwise agreed between such Liquidity Purchaser and the
Conduit Purchaser in its Purchaser Group.
(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 and, if such
Class B Purchaser is a Conduit Purchaser, each of its Liquidity
Purchasers hereunder with replacement purchaser or purchasers
which shall succeed to the rights of such Class B Purchaser or
Class B Purchasers under this Agreement. Any such replacement
purchaser shall be (i) reasonably acceptable to the Agent for the
applicable Purchaser Group, (ii) if such Class B Purchaser is a
Liquidity Purchaser, acceptable to the related Conduit Purchaser
in its sole discretion, and (iii) if such Class B Purchaser is a
Conduit Purchaser, each Liquidity Purchaser in its Purchaser
Group shall be concurrently replaced as provided in this
subsection unless such Liquidity Purchaser otherwise consents 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 (A) 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 (B) if the Class B Purchaser to be replaced is an Agent or
the Facility Agent or, unless the Agent for the Applicable
Purchaser Group and the Facility Agent otherwise agree, a Conduit
Purchaser sponsored or administered by such Agent or the Facility
Agent (in its individual capacity), a replacement such Agent or
the Facility Agent, as the case may be, shall have been appointed
in accordance with Section 7.9 and the Agent or the Facility
Agent, as the case may be, to be replaced shall have been paid
all amounts owing to it as 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 Agent for the applicable
Purchaser Group 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.
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 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
Pooling and Servicing Agreement, 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 or any other provision of this Agreement affecting the
Agents or the Facility Agent without the written consent of each
Agent adversely affected thereby and the Facility Agent. 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 Standard
& Poor's on behalf of Class B Purchasers which are Conduit
Purchasers, it will at the request of its related Agent 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 and other than those which would have an
adverse effect on any other Class or Series of Certificates, as
shall reasonably be determined by such Agent to be required
(i) for the Class B Certificate to be rated A by Standard &
Poor's or (ii) for any initial Class B Purchaser which is a
Conduit Purchaser to obtain or maintain an informal rating of the
Class B Certificate which will permit such Conduit Purchaser's
commercial paper notes to maintain at least the rating from
Standard & Poor's as in effect immediately prior to such Conduit
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 Conduit 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 Conduit Purchaser (other than the
liquidity support provided to such Conduit Purchaser by Liquidity
Providers).
The Facility Agent may cast any vote or give any
direction under the Pooling and Servicing Agreement on behalf of
the Class A Certificateholders if it has been directed to do so
by (i) Class A-1 Purchasers and Class A-2 Purchasers required
under the terms of the Class A-2 Purchase Agreement or the
Class A-2 Purchase Agreement, respectively, and (ii) by the
Required Class B Owners and the Required Class B Purchasers.
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.
10201 Main Street
Houston, Texas 77025
Attention: Treasurer
Telephone: (713) 669-2601
Telecopy: (713) 669-2621
SRI: Specialty Retailers, Inc.
10201 Main Street
Houston, Texas 77025
Attention: Treasurer
Telephone: (713) 669-2601
Telecopy: (713) 669-2621
The Trustee: Bankers Trust (Delaware)
1011 Centre Road, Suite 200
Wilmington, Delaware 19805-1266
Attention: Corporate Trust and Agency Group
Telephone: (302) 636-3300
Telefax: (302) 636-3222
Mailing Address:
P.O. Box 8795
Wilmington, Delaware 19899-8795
with a copy to: 4 Albany Street - 10th Floor
New York, New York 10006
Attention: Corporate Trust and Agency Group
Telephone: (212) 250-2500
Telefax: (212) 250-6439
The Facility Credit Suisse First Boston, New York Branch
Agent: Eleven Madison Avenue
New York, New York 10010
Attention: Asset Finance Department
Telephone: (212) 325-9076
Telefax: (212) 325-6677
(b) All payments to be made to an Agent or any Class B
Purchaser in a Purchaser Group hereunder shall be made in United
States dollars, and, unless otherwise specifically provided
herein, shall be made to such 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 an Agent or Class B
Purchaser, all payments to it shall be made by federal wire to
the account specified in the Joinder Supplement or Transfer
Supplement by which it became a party hereto. All payments to be
made to the Facility Agent hereunder shall be made in United
States dollars, and, unless otherwise directed by the Facility
Agent all such payments shall be made by federal wire to The Bank
of New York (BONY), ABA #021-000-018, for credit to Credit Suisse
First Boston CSFBNY -- Loan Clearing Account #8900329262,
reference SRI Receivables Master Trust Series 1999-1, with
telephone notice (including federal wire number) to the Asset
Finance Department of CSFB (212-325-9070).
(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 any 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, each 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. This Agreement is also intended to
benefit the Support Parties, Affected Parties, Participants and
Indemnities, and their respective successors and assigns, to the
extent provided herein.
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, 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 each 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.
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 each 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
any Class B Purchaser, any Agent or the Facility Agent relative
to subject matter hereof not expressly set forth or referred to
herein or therein.
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 Principal Balance, all accrued and unpaid
Class B Interest, Class B Program Fees and Class B Utilization
Fees, all amounts payable by pursuant to Sections 2.3, 2.4, 2.5
or 2.6 hereof and all other amounts payable to the Class B
Purchasers, the Agents and the Facility Agent hereunder and the
termination of all Commitments and (b) the Series Termination
Date; provided, however, 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 Agents, 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 any 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 an
Agent, the Facility Agent or a Class B Purchaser or to the
Transferor under the Receivables Purchase Agreement, 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
each 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 any Agent, the Facility Agent or any Class B Purchaser
to enforce such liability against the Servicer or any of its
assets.
(b) Each of SRPC, SRI, the Transferor, the Servicer,
each Agent, the Facility Agent and each Class B Purchaser hereby
agrees that it shall not institute or join against any Conduit
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 Conduit Purchaser
(collectively, "Notes") is paid.
(c) Notwithstanding any provisions contained in this
Agreement to the contrary, no Conduit Purchaser shall pay, or be
obligated to pay, any amount pursuant to this Agreement unless
(i) such Conduit Purchaser has received funds which may be used
to make such payment and which funds are not required to repay
its Notes when due and (ii) after giving effect to such payment,
either (A) Conduit Purchaser could issue Notes to refinance all
its outstanding Notes (assuming such outstanding Notes matured at
such time) in accordance with the program documents governing
such Conduit Purchaser's Note issuance program or (B) all Notes
of such Conduit Purchaser are paid in full. Payments by a
Conduit Purchaser hereunder are expressly limited to the amount
available therefor in accordance with the terms of such Conduit
Purchaser's program documents, and no recourse shall be had
against such Conduit Purchaser or any other Person in respect of
any deficiency in such amounts. Any amount which a Conduit
Purchaser does not pay pursuant to the operation of this
subsection shall not constitute a claim (as defined in 101 of
the Bankruptcy Code) against or corporate obligation of such
Conduit Purchaser for any such insufficiency unless and until
such Conduit Purchaser satisfies the provisions of clauses (i)
and (ii) above. This subsection shall survive for one year and a
day after the latest maturing Note issued by such Conduit
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, EACH
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;
(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 SUE IN ANY OTHER JURISDICTION.
9.14 WAIVERS OF JURY TRIAL. EACH OF SRPC, SRI, THE
TRANSFEROR, THE SERVICER, THE FACILITY AGENT, THE AGENTS 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.
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/Charles M. Sledge
Name: Charles M. Sledge
Title: Senior Vice President
SPECIALTY RETAILERS, INC.,
individually and as Servicer
By: /s/ James A. Marcum________________
Name: James A. Marcum
Title: Vice Chairman, CFO
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as Facility Agent
By: /s/ Alberto Zonca______________
Name: Alberto Zonca
Title: Vice President
By: /s/ Matthew J. Monaco__________
Name: Matthew J. Monaco
Title: Associate
EXHIBIT A
FORM OF INVESTMENT LETTER
[Date]
SRI Receivables Purchase Co., Inc.
10201 Main Street
Houston, Texas 77025
Attention: Treasurer
Re SRI Receivables Master Trust Class B
Variable Funding Certificates, Series 1999-1
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by
the undersigned (the "Purchaser") pursuant to subsection 8.1(a)
of the Class B Certificate Purchase Agreement dated as of
November 9, 1999 (as in effect, the "Certificate Purchase
Agreement"), among SRI Receivables Purchase Co., Inc., as
Transferor, Specialty Retailers, Inc., as Servicer, the Class B
Purchasers and Agents parties thereto and Credit Suisse First
Boston, New York Branch, as Agent and Facility Agent.
Capitalized terms used herein without definition shall have the
meanings set forth in the Certificate Purchase Agreement. The
Purchaser represents to and agrees with the Transferor as
follows:
(a) The Purchaser is authorized [to enter into the
Certificate Purchase Agreement and to perform its
obligations thereunder and to consummate the transactions
contemplated thereby] [to purchase a participation in
obligations under the Certificate Purchase Agreement].
(b) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Class B Certificates and is able to bear the economic risk
of such investment. The Purchaser has been afforded the
opportunity to ask such questions as it deems necessary to
make an investment decision, and has received all
information it has requested in connection with making such
investment decision. The Purchaser has, independently and
without reliance upon any 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, SRPC, SRI, Stage, the
Transferor and the Servicer and made its own decision to
purchase its interest in the Class B Certificates, and will,
independently and without reliance upon any Agent, 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 the
Certificate Purchase Agreement, 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, SRPC, SRI,
Stage, Granite, the Transferor and the Servicer.
(c) The Purchaser is an "accredited investor", as
defined in Rule 501, promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), or is a
sophisticated institutional investor. The Purchaser
understands that the offering and sale of the Class B
Certificates has not been and will not be registered under
the Securities Act and has not and will not be registered or
qualified under any applicable "Blue Sky" law, and that the
offering and sale of the Class B Certificate has not been
reviewed by, passed on or submitted to any federal or state
agency or commission, securities exchange or other
regulatory body.
(d) The Purchaser is acquiring an interest in Class B
Certificates without a view to any distribution, resale or
other transfer thereof except, with respect to any Class B
Purchaser Interest or any interest or participation therein,
as contemplated in the following sentence. The Purchaser
will not resell or otherwise transfer any interest or
participation in the Class B Purchaser Interest, except in
accordance with Section 8.1 of the Certificate Purchase
Agreement and (i) in a transaction exempt from the
registration requirements of the Securities Act of 1933, as
amended, and applicable state securities or "blue sky" laws;
(ii) to the Transferor or any affiliate of the Transferor;
or (iii) to a person who the Purchaser reasonably believes
is a qualified institutional buyer (within the meaning
thereof in Rule 144A under the Securities Act) that is aware
that the resale or other transfer is being made in reliance
upon Rule 144A. In connection therewith, the Purchaser
hereby agrees that it will not resell or otherwise transfer
the Class B Certificates or any interest therein unless the
purchaser thereof provides to the addressee hereof a letter
substantially in the form hereof.
(e) This Investment Letter has been duly executed and
delivered and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights
generally and general principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:___________________________
Name:
Title:
EXHIBIT B
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among SRI Receivables Purchase Co.,
Inc. (the "Transferor"), Specialty Retailers, Inc., as Servicer
(the "Servicer"), the Class B Purchaser set forth in Item 2 of
Schedule I hereto (the "Additional Class B Purchaser"), the Agent
set forth in Item 3 of Schedule I hereto for the Class B
Purchasers in the Purchaser Group set forth in Item 4 of
Schedule I hereto (in such capacity, the "Agent"), and Credit
Suisse First Boston, New York Branch, as Facility Agent for the
Class B Purchasers under, and as defined in, the Certificate
Purchase Agreement described below (in such capacity, the
"Facility Agent").
W I T N E S S E T H
WHEREAS, this Supplement is being executed and
delivered in accordance with subsection 2.2(d) of the Class B
Certificate Purchase Agreement, dated as of November 9, 1999,
among SRI Receivables Purchase Co., Inc., as Transferor,
Specialty Retailers, Inc., as Servicer, the Class B Purchasers
and Agents parties thereto and Credit Suisse First Boston, New
York Branch, as Facility Agent (as from time to time amended,
supplemented or otherwise modified in accordance with the terms
thereof, the "Certificate Purchase Agreement"; unless otherwise
defined herein, terms defined in the Certificate Purchase
Agreement are used herein as therein defined); and
WHEREAS, the Additional Class B Purchaser (if it is not
already a Class B Purchaser party to the Certificate Purchase
Agreement) wishes to become a Class B Purchaser party to the
Certificate Purchase Agreement and the Agent (if it is not
already the Agent party to the Certificate Purchase Agreement)
wishes to become an Agent party to the Certificate Purchase
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
(a) Upon receipt by the Agent of five counterparts of
this Supplement, to each of which is attached a fully completed
Schedule I and Schedule II, each of which has been executed by
the Additional Class B Purchaser, the Agent, the Transferor and
the Facility Agent, the Agent will transmit to the Servicer, the
Transferor, the Trustee, the Facility Agent and the Additional
Class B Purchaser a Joinder Effective Notice, substantially in
the form of Schedule III to this Supplement (a "Joinder Effective
Notice"). Such Joinder Effective Notice shall be executed by the
Agent and shall set forth, inter alia, the date on which the
transfer effected by this Supplement shall become effective (the
"Joinder Effective Date"). From and after the Joinder Effective
Date, the Additional Class B Purchaser shall be a Class B
Purchaser party to the Certificate Purchase Agreement for all
purposes thereof and shall be a Conduit Purchaser, Liquidity
Purchaser or Committed Purchaser, as specified on such Schedule
II, having an initial Maximum Purchase Amount or Commitment, as
applicable, as set forth in such Schedule II. The Additional
Class B Purchaser shall be a member of the Purchaser Group set
forth in Item 4 of Schedule I hereto. If the Additional Class B
Purchaser is a Conduit Purchaser, then (i) such Schedule II
identifies its related Liquidity Purchasers and (ii) each such
Liquidity Purchaser has executed and delivered (or is
concurrently herewith executing and delivering) its own Joinder
Supplement with respect to such Additional Class B Purchaser. If
the Additional Class B Purchaser is a Liquidity Purchaser, such
Schedule II identifies its related Conduit Purchaser. From and
after the Joinder Effective Date, the Agent, if it is not already
an "Agent" under the Certificate Purchase Agreement, shall be an
Agent thereunder for the Purchaser Group set forth in Item 4 of
Schedule I hereto.
(b) Concurrently with the execution and delivery
hereof, the Additional Class B Purchaser will deliver to the
Transferor and the Trustee an executed Investment Letter in the
form of Exhibit A to the Certificate Purchase Agreement.
(c) Each of the parties to this Supplement agrees and
acknowledges that at any time and from time to time upon the
written request of any other party, it will execute and deliver
such further documents and do such further acts and things as
such other party may reasonably request in order to effect the
purposes of this Supplement.
(d) By executing and delivering this Supplement, the
Additional Class B Purchaser confirms to and agrees with each
Agent, the Facility Agent and each Class B Purchaser as follows:
(i) neither the Agent, the Facility Agent nor any other Class B
Purchaser makes any representation or warranty or assumes any
responsibility with respect to any statements, warranties or
representations made in or in connection with the Certificate
Purchase Agreement (other then representations or warranties made
by such respective parties) or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Certificate Purchase Agreement or any other instrument or
document furnished pursuant thereto, or with respect to the
Trust, the financial condition of SRPC, SRI, Granite, Stage, the
Servicer, the Transferor or the Trustee, or the performance or
observance by SRPC, SRI, Granite, Stage, the Servicer, the
Transferor or the Trustee of any of their respective obligations
under the Certificate Purchase Agreement or the Pooling and
Servicing Agreement or any other instrument or document furnished
pursuant hereto; (ii) the Additional Class B Purchaser confirms
that it has received a copy of such documents and information as
it has deemed appropriate to make its own credit analysis and
decision to enter into this Supplement; (iii) the Additional
Class B Purchaser will, independently and without reliance upon
any Agent, 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 credit
decisions in taking or not taking action under the Certificate
Purchase Agreement; (iv) each Purchasing Class B Purchaser
appoints and authorizes the Agent and the Facility Agent to take
such action as agent on its behalf and to exercise such powers
under the Certificate Purchase Agreement and the Pooling and
Servicing Agreement as are delegated to such Agent or the
Facility Agent, as applicable, by the terms thereof, together
with such powers as are reasonably incidental thereto, all in
accordance with Section 7 of the Certificate Purchase Agreement;
and (v) the Additional Class B Purchaser agrees (for the benefit
of each Agent, the Facility Agent, each other Class B Purchaser,
the Servicer and the Transferor) that (A) if it is a Conduit
Purchaser, it will perform in accordance with their terms all of
the obligations which by the terms of the Certificate Purchase
Agreement are required to be performed by it as a Class B
Purchaser which is a Conduit Purchaser, (B) if it is a Committed
Purchaser, it will perform in accordance with their terms all of
the obligations which by the terms of the Certificate Purchase
Agreement are required to be performed by it as a Class B
Purchaser which is a Committed Purchaser, and (C) if it is a
Liquidity Purchaser, it will perform in accordance with their
terms all of the obligations which by the terms of the
Certificate Purchase Agreement are required to be performed by it
as a Class B Purchaser which is a Liquidity Purchaser. By
executing and delivering this Supplement, the Agent, if it not
already an "Agent" under the Certificate Purchase Agreement,
agrees (for the benefit of each other Agent, the Facility Agent,
each Class B Purchaser, the Servicer and the Transferor) that it
will perform in accordance with their terms all of the
obligations which by the terms of the Certificate Purchase
Agreement are required to be performed by it as an Agent for its
Purchaser Group.
(e) Schedule II hereto sets forth the Maximum Purchase
Amount or the Commitment, as applicable, the Commitment
Expiration Date, if applicable, and the initial Investing Office
of the Additional Class B Purchaser, as well as administrative
information with respect to the Additional Class B Purchaser,
including the address of Additional Class B Purchaser for
purposes of notices, requests and demands pursuant to
subsection 9.2(a) of the Certificate Purchase Agreement and the
identification of the account for certain payments to the
Additional Class B Purchaser for purposes of subsection 9.2(b) of
the Certificate Purchase Agreement.
(f) Schedule II hereto also sets forth the address of
the Agent for purposes of notices, requests and demands pursuant
to subsection 9.2(a) of the Certificate Purchase Agreement and
the identification of the account for certain payments to the
Agent for purposes of subsection 9.2(b) of the Certificate
Purchase Agreement.
(g) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1
of Schedule I hereto.
SCHEDULE I TO
JOINDER SUPPLEMENT
Completion of Information And
Signatures For Joinder Supplement
Re: Class B Certificate Purchase Agreement, dated as
of November 9, 1999, among SRI Receivables
Purchase Co., Inc., as Transferor, Specialty
Retailers, Inc., as Servicer, the Class B
Purchasers and Agent to party thereto and Credit
Suisse First Boston, New York Branch, as Agent and
as Facility Agent.
Item 1: Date of Joinder Supplement:
Item 2: Additional Class B Purchaser:
Item 3: Agent:
Item 4.: Purchaser Group:
Item 5: Signatures of Parties to Agreement:
as Additional Class B Purchaser
By:
Name:
Title:
as Agent
By:
Name:
Title:
SRI RECEIVABLES PURCHASE CO., INC.
as Transferor
By:
Name:
Title:
ACCEPTED BY:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Facility Agent
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE II TO
JOINDER SUPPLEMENT
List of Percentages, Maximum Purchase Amount
or Commitment, Commitment Expiration Date, Addresses
For Notices and Payment Instructions and Investing Offices
[NAME OF CLASS B PURCHASER], as Class B Purchaser
Type of Purchaser: [Conduit/Liquidity/Committed Purchaser]
For Conduit Purchaser: (if applicable)
Initial Purchaser Percentage: _______%
Maximum Purchase Amount: $____________
Related Liquidity Purchasers, Commitment Expiration
Dates and
Initial Liquidity Percentages:
______________________ ____________, ____
_______%
______________________ ____________, ____
_______%
______________________ ____________, ____
_______%
For Liquidity Purchaser: (if applicable)
Initial Liquidity Percentage: _______%
Commitment: $____________
Commitment Expiration Date: ____________, ____
Related Conduit Purchaser: _______________________
For Committed Purchaser: (if applicable)
Initial Purchaser Percentage: _______%
Commitment: $________
Commitment Expiration Date:
____________, ____
Address for Notices:
Payment Instructions:
Investing Office:
[NAME OF AGENT], as Agent
Address for Notices:
Payment Instructions:
SCHEDULE III TO
JOINDER SUPPLEMENT
Form of
Joinder Effective Notice
To: [Name and address of
Transferor, Servicer, Trustee, Facility
Agent and Additional Class B Purchaser]
The undersigned, as Agent under the Class B Certificate
Purchase Agreement, dated as of November 9, 1999, among SRI
Receivables Purchase Co., Inc., as Transferor, Specialty
Retailers, Inc., as Servicer, the Class B Purchasers and Agents
parties thereto and Credit Suisse First Boston, New York Branch,
as Facility Agent thereunder, acknowledges receipt of five
executed counterparts of a completed Joinder Supplement. [Note:
attach copies of Schedules I and II from such Agreement.] Terms
defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the
Joinder Effective Date will be _____________, 199_.
Very truly yours,
[NAME OF AGENT]
By:_______________________
Name:
Title:
EXHIBIT C
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among the Transferor Class B
Purchaser set forth in Item 2 of Schedule I hereto (the
"Transferor Class B Purchaser"), the Purchasing Class B Purchaser
set forth in Item 3 of Schedule I hereto (the "Purchasing Class B
Purchaser"), the Agent set forth in Item 4 of Schedule I hereto
for the Class B Purchasers in the Purchaser Group set forth in
Item 5 of Schedule I hereto (in such capacity, the "Agent"), and
Credit Suisse First Boston, New York Branch, as Facility Agent
for the Class B Purchasers under, and as defined in, the
Certificate Purchase Agreement described below (in such capacity,
the "Facility Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and
delivered in accordance with subsection 8.1(e) of the Class B
Certificate Purchase Agreement, dated as of November 9, 1999,
among SRI Receivables Purchase Co., Inc., as Transferor,
Specialty Retailers, Inc., as Servicer, the Class B Purchasers
and Agents parties thereto and Credit Suisse First Boston, New
York Branch, as Facility Agent (as from time to time amended,
supplemented or otherwise modified in accordance with the terms
thereof, the "Certificate Purchase Agreement"; unless otherwise
defined herein, terms defined in the Certificate Purchase
Agreement are used herein as therein defined);
WHEREAS, the Purchasing Class B Purchaser (if it is not
already a Class B Purchaser party to the Certificate Purchase
Agreement) wishes to become a Class B Purchaser party to the
Certificate Purchase Agreement and the Purchasing Class B
Purchaser wishes to acquire and assume from the Transferor
Class B Purchaser, certain of the rights, obligations and
commitments under the Certificate Purchase Agreement; and
WHEREAS, the Transferor Class B Purchaser wishes to
sell and assign to the Purchasing Class B Purchaser, certain of
its rights, obligations and commitments under the Certificate
Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as
follows:
(a) Upon receipt by the Agent of five counterparts of
this Supplement, to each of which is attached a fully completed
Schedule I and Schedule II, each of which has been executed by
the Transferor Class B Purchaser, the Purchasing Class B
Purchaser and the Agent, the Agent will transmit to the Servicer,
the Transferor, the Trustee, the Transferor Class B Purchaser and
the Purchasing Class B Purchaser a Transfer Effective Notice,
substantially in the form of Schedule III to this Supplement (a
"Transfer Effective Notice"). Such Transfer Effective Notice
shall be executed by the Agent and shall set forth, inter alia,
the date on which the transfer effected by this Supplement shall
become effective (the "Transfer Effective Date"). From and after
the Transfer Effective Date the Purchasing Class B Purchaser
shall be a Class B Purchaser party to the Certificate Purchase
Agreement for all purposes thereof as a Conduit Purchaser,
Liquidity Purchaser or Committed Purchaser, as applicable, as
specified on Schedule II to this Supplement, and shall be a
member of the Purchaser Group set forth in Item 5 of Schedule I
hereto.
(b) At or before 12:00 Noon, local time of the
Transferor Class B Purchaser, on the Transfer Effective Date, the
Purchasing Class B Purchaser shall pay to the Transferor Class B
Purchaser, in immediately available funds, an amount equal to the
purchase price, as agreed between the Transferor Class B
Purchaser and such Purchasing Class B Purchaser (the "Purchase
Price"), of the portion set forth on Schedule II hereto being
purchased by such Purchasing Class B Purchaser of the outstanding
Class B Invested Amount under the Class B Certificate owned by
the Transferor Class B Purchaser (such Purchasing Class B
Purchaser's "Purchase Percentage") and other amounts owing to the
Transferor Class B Purchaser under the Certificate Purchase
Agreement or otherwise in respect of the Class B Certificates.
Effective upon receipt by the Transferor Class B Purchaser of the
Purchase Price from the Purchasing Class B Purchaser, the
Transferor Class B Purchaser hereby irrevocably sells, assigns
and transfers to the Purchasing Class B Purchaser, without
recourse, representation or warranty, and the Purchasing Class B
Purchaser hereby irrevocably purchases, takes and assumes from
the Transferor Class B Purchaser, the Purchasing Class B
Purchaser's Purchase Percentage of (i) the presently outstanding
Class B Invested Amount under the Class B Certificates owned by
the Transferor Class B Purchaser and other amounts owing to the
Transferor Class B Purchaser in respect of the Class B
Certificates, together with all instruments, documents and
collateral security pertaining thereto, and (ii) the Purchasing
Class B Purchaser's Purchase Percentage of (A) if the Transferor
Class B Purchaser is a Conduit Purchaser, the Purchaser
Percentage and the Maximum Purchaser Amount of the Transferor
Class B Purchaser and the other rights and duties of the
Transferor Class B Purchaser under the Certificate Purchase
Agreement, (B) if the Transferor Class B Purchaser is a Committed
Purchaser, the Purchaser Percentage and the Commitment of the
Transferor Class B Purchaser and other rights, duties and
obligations of the Transferor Class B Purchaser under the
Certificate Purchase Agreement, or (C) if the Transferor Class B
Purchaser is a Liquidity Purchaser, the Liquidity Percentage and
the Commitment of the Transferor Class B Purchaser and other
rights, duties and obligations of the Transferor Class B
Purchaser under the Certificate Purchase Agreement. This
Supplement is intended by the parties hereto to effect a purchase
by the Purchasing Class B Purchaser and sale by the Transferor
Class B Purchaser of interests in the Class B Certificates, and
it is not to be construed as a loan or a commitment to make a
loan by the Purchasing Class B Purchaser to the Transferor
Class B Purchaser. The Transferor Class B Purchaser hereby
confirms that the amount of the Class B Invested Amount is
$___________ and its Percentage Interest thereof is ___%, which
equals $___________ as of _________, ___. Upon and after the
Transfer Effective Date (until further modified in accordance
with the Certificate Purchase Agreement), the Purchaser
Percentage or Liquidity Percentage, as applicable, of the
Transferor Class B Purchaser and the Purchasing Class B
Purchaser, the Maximum Purchaser Amount or Commitment, as
applicable, of the Transferor Class B Purchaser and the
Purchasing Class B Purchaser and the Percentage Interest of the
Transferor Class B Purchaser and the Purchasing Class B Purchaser
shall be as set forth in Schedule II to this Supplement.
(c) The Transferor Class B Purchaser has made
arrangements with the Purchasing Class B Purchaser with respect
to (i) the portion, if any, to be paid, and the date or dates for
payment, by the Transferor Class B Purchaser to the Purchasing
Class B Purchaser of any fees heretofore received by the
Transferor Class B Purchaser pursuant to the Certificate Purchase
Agreement prior to the Transfer Effective Date and (ii) the
portion, if any, to be paid, and the date or dates for payment,
by the Purchasing Class B Purchaser to the Transferor Class B
Purchaser of fees or interest received by the Purchasing Class B
Purchaser pursuant to the Certificate Purchase Agreement or
otherwise in respect of the Class B Certificates from and after
the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be
payable from and after the Transfer Effective Date to or for the
account of the Transferor Class B Purchaser in respect of the
Class B Certificates shall, instead, be payable to or for the
account of the Transferor Class B Purchaser and the Purchasing
Class B Purchaser, as the case may be, in accordance with their
respective interests as reflected in this Supplement.
(ii) All interest, fees and other amounts that
would otherwise accrue for the account of the Transferor Class B
Purchaser from and after the Transfer Effective Date pursuant to
the Certificate Purchase Agreement or in respect of the Class B
Certificates shall, instead, accrue for the account of, and be
payable to or for the account of, the Transferor Class B
Purchaser and the Purchasing Class B Purchaser, as the case may
be, in accordance with their respective interests as reflected in
this Supplement. In the event that any amount of interest, fees
or other amounts accruing prior to the Transfer Effective Date
was included in the Purchase Price paid by the Purchasing Class B
Purchaser, the Transferor Class B Purchaser and the Purchasing
Class B Purchaser will make appropriate arrangements for payment
by the Transferor Class B Purchaser to the Purchasing Class B
Purchaser of such amount upon receipt thereof from the Agent.
(e) Concurrently with the execution and delivery
hereof, the Purchasing Class B Purchaser will deliver to Agent,
the Transferor and the Trustee an executed Investment Letter in
the form of Exhibit A to the Certificate Purchase Agreement and
the forms, if any, required by subsection 2.5(c) of the
Certificate Purchase Agreement.
(f) Each of the parties to this Supplement agrees and
acknowledges that (i) at any time and from time to time upon the
written request of any other party, it will execute and deliver
such further documents and do such further acts and things as
such other party may reasonably request in order to effect the
purposes of this Supplement, and (ii) the Agent shall apply each
payment made to it under the Certificate Purchase Agreement,
whether in its individual capacity or as Agent, in accordance
with the provisions of the Certificate Purchase Agreement, as
appropriate.
(g) By executing and delivering this Supplement, the
Transferor Class B Purchaser and the Purchasing Class B Purchaser
confirm to and agree with each other, the Facility Agent, each
Agent and each Class B Purchaser as follows: (i) other than the
representation and warranty that it is the legal and beneficial
owner of the interest being assigned hereby free and clear of any
adverse claim, the Transferor Class B Purchaser makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with the Certificate Purchase Agreement or the
Pooling and Servicing Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
the Certificate Purchase Agreement or any other instrument or
document furnished pursuant thereto; (ii) the Transferor Class B
Purchaser makes no representation or warranty and assumes no
responsibility with respect to the Trust, the financial condition
of SRPC, SRI, Granite, Stage, the Servicer, the Transferor or the
Trustee, or the performance or observance by SRPC, SRI, Granite,
Stage, the Servicer, the Transferor or the Trustee of any of
their respective obligations under the Certificate Purchase
Agreement, the Pooling and Servicing Agreement or any other
instrument or document furnished pursuant hereto; (iii) each
Purchasing Class B Purchaser confirms that it has received a copy
of such documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Supplement; (iv) each Purchasing Class B Purchaser will,
independently and without reliance upon the Facility Agent, any
Agent, the Transferor Class B Purchaser 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 credit
decisions in taking or not taking action under the Certificate
Purchase Agreement or the Pooling and Servicing Agreement;
(v) each Purchasing Class B Purchaser appoints and authorizes the
Agent and the Facility Agent to take such action as agent on its
behalf and to exercise such powers under the Certificate Purchase
Agreement and the Pooling and Servicing Agreement as are
delegated to the Agent or the Facility Agent, as the case may be,
by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Section 7 of the
Certificate Purchase Agreement; and (vi) each Purchasing Class B
Purchaser agrees (for the benefit of the Transferor Class B
Purchaser, each Agent, the Facility Agent, each Class B
Purchaser, the Servicer and the Transferor) that (A) if it is a
Conduit Purchaser, it will perform in accordance with their terms
all of the obligations which by the terms of the Certificate
Purchase Agreement are required to be performed by it as a
Class B Purchaser which is a Conduit Purchaser, (B) if it is a
Committed Purchaser, it will perform in accordance with their
terms all of the obligations which by the terms of the
Certificate Purchase Agreement are required to be performed by it
as a Class B Purchaser which is a Committed Purchaser, and (C) if
it is a Liquidity Purchaser, it will perform in accordance with
their terms all of the obligations which by the terms of the
Certificate Purchase Agreement are required to be performed by it
as a Class B Purchaser which is a Liquidity Purchaser.
(h) Schedule II hereto sets forth the revised Maximum
Purchase Amount or the revised Commitment, as applicable, and the
Commitment Expiration Date, if applicable, of the Transferor
Class B Purchaser, as well as administrative information with
respect to the Transferor Class B Purchaser, including the
address of Transferor Class B Purchaser for purposes of notices,
requests and demands pursuant to subsection 9.2(a) of the
Certificate Purchase Agreement and the identification of the
account for certain payments to the Transferor Class B Purchaser
for purposes of subsection 9.2(b) of the Certificate Purchase
Agreement. Schedule II hereto also sets forth the Maximum
Purchase Amount or the Commitment, as applicable, the Commitment
Expiration Date, if applicable, and the initial Investing Office
of the Purchasing Class B Purchaser, as well as administrative
information with respect to the Purchasing Class B Purchaser,
including the address of Purchasing Class B Purchaser for
purposes of notices, requests and demands pursuant to
subsection 9.2(a) of the Certificate Purchase Agreement and the
identification of the account for certain payments to the
Purchasing Class B Purchaser for purposes of subsection 9.2(b) of
the Certificate Purchase Agreement.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1
of Schedule I hereto.
SCHEDULE I TO
TRANSFER SUPPLEMENT
Completion of Information and
Signatures for Transfer Supplement
Re: Class B Certificate Purchase Agreement, dated as
of November 9, 1999, among SRI Receivables
Purchase Co., Inc., as Transferor, Specialty
Retailers, Inc., as Servicer, the Class B
Purchasers and Agents party thereto and Credit
Suisse First Boston, New York Branch, as Facility
Agent.
Item 1: Date of Transfer Supplement:
Item 2: Transferor Class B Purchaser:
Item 3: Purchasing Class B Purchaser:
Item 4: Agent:
Item 5: Purchaser Group:
Item 6: Signatures of Parties to Agreement:
as Transferor Class B Purchaser
By:
Name:
Title:
as Purchasing Class B Purchaser
By:
Name:
Title:
CONSENTED TO AND ACCEPTED BY:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Facility Agent
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE II TO
TRANSFER SUPPLEMENT
List of Percentages, Maximum Purchase Amount
or Commitment, Commitment Expiration Date, Addresses
For Notices and Payment Instructions and Investing Offices
[NAME OF TRANSFEROR CLASS B PURCHASER]
Type of Purchaser: [Conduit/Liquidity/Committed Purchaser]
For Conduit Purchaser: (if applicable)
Maximum Purchase Amount Prior to Sale: $____________
Maximum Purchase Amount Sold: $____________
Maximum Purchase Amount Retained: $____________
Purchaser Percentage Prior to Sale: _______%
Purchaser Percentage Sold: _______%
Purchaser Percentage Retained: _______%
Related Liquidity Purchasers, Commitment Expiration
Dates and
Liquidity Percentages:
______________________ ____________, ____
_______%
______________________ ____________, ____
_______%
______________________ ____________, ____
_______%
For Liquidity Purchaser: (if applicable)
Commitment Prior to Sale: $____________
Commitment Sold: $____________
Commitment Retained: $____________
Liquidity Percentage Prior to Sale: _______%
Liquidity Percentage Sold: _______%
Liquidity Percentage Retained: _______%
Commitment Expiration Date: ________,
____
Related Conduit Purchaser:
_______________________
For Committed Purchaser: (if applicable)
Commitment Prior to Sale: $____________
Commitment Sold: $____________
Commitment Retained: $____________
Purchaser Percentage Prior to Sale: _______%
Purchaser Percentage Sold: _______%
Purchaser Percentage Retained: _______%
Commitment Expiration Date: ____________, ____
[NAME OF PURCHASING CLASS B PURCHASER]
Type of Purchaser: [Conduit/Liquidity/Committed Purchaser]
For Conduit Purchaser: (if applicable)
Maximum Purchase Amount Prior to Sale: $____________
Maximum Purchase Amount Purchased: $____________
Maximum Purchase Amount After Sale: $____________
Purchaser Percentage Prior to Sale: _______%
Purchaser Percentage Purchased: _______%
Purchaser Percentage After Sale: _______%
Related Liquidity Purchasers, Commitment Expiration
Dates and
Liquidity Percentages:
______________________ ____________, ____
_______%
______________________ ____________, ____
_______%
______________________ ____________, ____
_______%
For Liquidity Purchaser: (if applicable)
Commitment Prior to Sale: $____________
Commitment Purchased: $____________
Commitment After Sale: $____________
Liquidity Percentage Prior to Sale: _______%
Liquidity Percentage Purchased: _______%
Liquidity Percentage After Sale: _______%
Commitment Expiration Date: ____________, ____
Related Conduit Purchaser: _______________________
For Committed Purchaser: (if applicable)
Commitment Prior to Sale: $____________
Commitment Purchased: $____________
Commitment After Sale: $____________
Purchaser Percentage Prior to Sale: _______%
Purchaser Percentage Purchased: _______%
Purchaser Percentage After Sale: _______%
Commitment Expiration Date: ____________, ____
Address for Notices:
Payment Instructions:
Investing Office:
SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
Transfer Effective Notice
To: [Name and address of Transferor, Servicer,
Trustee, Facility Agent, Transferor Class B
Purchaser and Purchasing Class B Purchaser]
The undersigned, as Agent under the Class B Certificate
Purchase Agreement, dated as of November 9, 1999, among SRI
Receivables Purchase Co., Inc., as Transferor, Specialty
Retailers, Inc., as Servicer, the Class B Purchasers and Agents
parties thereto and Credit Suisse First Boston, New York Branch,
as Facility Agent thereunder, acknowledges receipt of five
executed counterparts of a completed Transfer Supplement. [Note:
attach copies of Schedules I and II from such Agreement.] Terms
defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the
Transfer Effective Date will be _____________, 199_.
Very truly yours,
[NAME OF AGENT]
By:_______________________
Name:
Title:
