Exhibit 4.10
FIRST AMENDMENT TO THE SERIES 1993-2 SUPPLEMENT
AND REVOLVING CERTIFICATE PURCHASE AGREEMENT
THIS FIRST AMENDMENT to (i) the Series 1993-2 Supplement to
the Amended and Restated Pooling and Servicing Agreement (the "SUPPLEMENT")
dated as of July 30, 1993, by and among Specialty Retailers, Inc., a Delaware
corporation (the "SERVICER"), SRI Receivables Purchase Corp., Inc., a Delaware
corporation (the "TRANSFEROR") and Bankers Trust (Delaware), a Delaware banking
corporation (the "TRUSTEE"), as trustee for the SRI Receivables Master Trust
(the "TRUST") (the SUPPLEMENT AMENDMENT"), and (ii) to the Revolving Certificate
Purchase Agreement (the "PURCHASE AGREEMENT") dated as of July 30, 1993, by and
among the Transferor, the financial institutions parties thereto (the "REVOLVING
PURCHASERS") and National Westminister Bank Plc, New York branch (the "FACILITY
AGENT") (the "PURCHASE AGREEMENT AMENDMENT" and together with the Supplement
Amendment, the "AMENDMENTS"), is made and entered into as of August 11, 1995 by
and among the Servicer, the Transferor, the Trustee on behalf of the Trust, the
Revolving Purchasers and the Facility Agent.
WHEREAS, the Servicer, the Trustee on behalf of the Trust and
the Transferor desire to modify and amend certain terms of the Supplement in the
manner more particularly described herein below;
WHEREAS, the Transferor, the Revolving Purchasers and the
Facility Agent desire to modify and amend certain terms of the Purchase
Agreement in the manner more particularly described herein below;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged:
SUPPLEMENT AMENDMENT
The Servicer, the Trustee on behalf of the Trust and the Transferor
hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the Supplement, as
amended by this Supplement Amendment. The definitions of "Applicable Margin" and
"Amortization Period Commencement Date" in the Supplement are hereby amended and
restated in their entirety to read as follows:
"APPLICABLE MARGIN" shall mean a percentage per annum
initially equal to (a) with respect to Alternate Base Rate Tranches,
0%; (b) with respect to One Month LIBOR Rate Tranches, <1> 0.50%; (c)
with respect to Two Month LIBOR Rate Tranches, <2> 0.50%; and (d) with
respect to Three Month LIBOR Rate Tranches, <3> 0.50%; provided that at
any time after the earlier of the occurrence of a Pay Out Event or the
eighth Monthly Distribution Date following the Amortization Period
Commencement Date, the Applicable Margin shall be 2.0%.
"AMORTIZATION PERIOD COMMENCEMENT DATE" shall mean the earlier
of the first day of the December 1999 Monthly Period and the Pay Out
Commencement Date and following an Extension occurring after August 20,
1995, the earlier of the date specified as such in the Extension Notice
and the Pay Out Commencement Date.
2. REPLACEMENT OF INTEREST RATE CAP AGREEMENT. THE TRANSFEROR
ASSIGNS, SETS OVER, CONVEYS, PLEDGES AND GRANTS A SECURITY INTEREST AND LIEN
(FREE AND CLEAR OF ALL OTHER LIENS) TO THE TRUSTEE FOR THE BENEFIT OF THE SERIES
1993-2 CERTIFICATEHOLDERS IN ALL OF THE TRANSFEROR'S RIGHT, TITLE AND INTEREST
NOW EXISTING OR HEREAFTER ARISING IN AND TO THE INTEREST RATE CAP AGREEMENT
EVIDENCED BY THE CONFIRMATION DATED AUGUST 15, 1995 BETWEEN [DEUTSCHE BANK] AND
THE TRANSFEROR FOR A RATE CAP TRANSACTION HAVING A NOTIONAL AMOUNT OF
$40,000,000 AND HAVING THE OTHER TERMS SET FORTH IN SUCH CONFIRMATION (THE "1995
CAP"). THE FACILITY AGENT AND THE SERIES 1993-2 CERTIFICATEHOLDERS HEREBY
CONSENT TO THE REPLACEMENT OF THE EXISTING INTEREST RATE CAP AGREEMENT DATED
JULY 30, 1993 (THE "1993 CAP") WITH THE 1995 CAP, AND HEREBY AUTHORIZE AND
DIRECT THE TRUSTEE TO RELEASE AND CONVEY BACK TO THE TRANSFEROR ITS INTEREST IN
THE 1993 CAP.
PURCHASE AGREEMENT AMENDMENT
The Transferor, the Revolving Purchasers and the Facility Agent hereby
agree as follows:
2. NON-USAGE FEE. The first sentence of subsection 15(a) of the
Purchase Agreement is amended in its entirety to read as
follows: As holders of Certificates, the Revolving Purchasers
shall be entitled to receive from payments made from Finance
Charge Collections allocated to the Certificates pursuant to
subsections 4.6(a) (v), 4.6(b) (v) and 4.6(c) (v) of the
Certificate Agreement and paid pursuant to Section 4.8 of the
Certificate Agreement a non-usage fee (the "Non-Usage Fee")
for the period from and including the Closing Date until the
Termination Date, equal to 0.25% per annum times the daily
average of the excess, if any, of (A) the Commitment Amount
over (b) the Funded Revolver Amount, such fee to be computed
on the basis of the actual number of days elapsed (including
the first but excluding the day of payment) over a year of 360
days.
GENERAL
The Servicer, the Transferor, the Trustee on behalf of the Trust, the
Revolving Purchasers and the Facility Agent hereby agree as follows:
3. EFFECT OF AMENDMENTS. The parties hereto expressly
acknowledge that the effectiveness of the Amendments is conditioned upon (a) the
execution, delivery and effectiveness of the Amended and Restated Pooling and
Servicing Agreement dated as of the date hereof (the "POOLING AGREEMENT") by and
among the Servicer, the Transferor and the Trustee, (b) the satisfaction of all
conditions set forth in the second paragraph of Section 13.1(a) of the Pooling
Agreement including the receipt of the Opinion of Counsel and the written
confirmation of each Rating Agency described therein, (c) the satisfaction of
all the conditions set forth in Section 6.16 of the Supplement including the
delivery of the Extension Notice and the receipt of all Election Notices from
Certificate Owners and (d) payment by wire transfer to the Facility Agent of
$40,000. Except as expressly set forth above, all terms of the Supplement and
the Purchase Agreement shall be and remain in full force and effect and shall
constitute the legal, valid and binding and enforceable obligations of the
parties thereto. To the extent any terms and conditions in the Supplement or
Purchase Agreement shall contradict or be in conflict with any provisions of the
Amendments, the provisions of the Amendments shall govern.
4. EXPENSES. The Servicer hereby agrees to pay all reasonable
attorneys' fees incurred by National Westminster Bank Plc (New York Branch and
Nassau Branch) in connection with the Purchase Agreement Amendment.
5. GOVERNING LAW. THESE AMENDMENTS AND THE SUPPLEMENT AND
PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PROTECTION OF THE PURCHASER'S OWNERSHIP OF THE PURCHASED
RECEIVABLES, OR REMEDIES HEREUNDER IN RESPECT THEREOF, MAY BE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
6. COUNTERPARTS. These Amendments may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
7. ACKNOWLEDGEMENTS. By its execution and delivery of these
Amendments in the space provided below, each of the Trustee and the holder of
the Series <4> 1993-2 Certificates acknowledges and consents to the terms of
these Amendments.
IN WITNESS WHEREOF, the parties hereto have executed these
Amendments on the day and year first above written.
SPECIALTY RETAILERS, INC., Servicer
By: XXXXX X. XXXX
Its: Senior Vice President,
Secretary and Treasurer
SRI RECEIVABLES PURCHASE CO., INC.,
Transferor
By: XXXXX X. XXXX
Its: Senior Vice President,
Secretary and Treasurer
BANKERS TRUST (DELAWARE), Trustee
By: M. XXXX XXXXXXX
Its: Assistant Secretary
NATIONAL WESTMINSTER BANK, Plc,
New York Branch
By: XXXX X. XXXXXXXXX
Its: Vice President
Additionally, pursuant to Section 28 of the Supplement, National
Westminster Bank, Plc, New York Branch acknowledges and agrees to the Supplement
Amendment as well as to the amendments effected as of the date hereof to the
Pooling Agreement.
NATIONAL WESTMINSTER BANK, Plc.
New York Branch
By: XXXX X. XXXXXXXXX
Its: Vice President
1
<1> 0.35%
<2> 0.35%
<3> 0.35%
<4> 1994
<5> SS93AMDT.FNL
