THIRD AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT
This THIRD AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT
(this "Amendment"), dated as of August 11, 1999 is among ENTERPRISE FUNDING
CORPORATION, a Delaware corporation (the "Company"), NORDSTROM NATIONAL
CREDIT BANK, a national banking association (the "Transferor"), THE
FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES THERETO (collectively, the
"Bank Investors" and each a "Bank Investor"), and BANK OF AMERICA, N.A. as
agent for the Company and the Bank Investors (in such capacity, the
"Agent") and as a Bank Investor.
PRELIMINARY STATEMENTS:
1. The Company, the Transferor, the Bank Investors, and the Agent
have entered into a Transfer and Administration Agreement dated
as of August 14, 1996, as amended by the First Amendment thereto,
dated as of August 19, 1997, as amended by the Second Amendment
thereto, dated as of July 6, 1998 (capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms
in the "Agreement").
2. The Transferor has requested certain amendments to the Transfer
and Administration Agreement.
3. The Company is, on the terms and conditions stated below, willing
to grant such requests of the Transferor.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to the Agreement. Effective as of the
date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 2 hereof, the Transfer and Administration Agreement is
hereby amended as follows:
In Section 1.1 of the Agreement, the definition of "Commitment
Termination Date" shall be amended such that the reference to
the date appearing in such definition shall be amended to read
"August 10, 2000.";
Section 2. Conditions to Effectiveness. This Amendment
shall become effective when the Company has executed this
Amendment and has received counterparts of this Amendment
executed by the Transferor, the Collection Agent, the Bank
Investors, and the Agent.
Section 3. Representations and Warranties.
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(a) Authority. The Transferor has the requisite corporate
power and authority to execute and deliver this Amendment and to perform
its obligations hereunder and under the Agreement (as modified hereby). The
execution, delivery and performance by the Transferor of this Amendment and
the performance of the Agreement (as modified hereby) have been duly
approved by all necessary corporate action and no other corporate
proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed
and delivered by the Transferor. This Amendment (as modified hereby) is the
legal, valid and binding obligation of the Transferor, enforceable against
the Transferor in accordance with its terms, and is in full force and
effect.
(c) Representations and Warranties. The representations and
warranties contained in the Agreement (other than any such representations
or warranties that, by their terms, are specifically of the Transferor made
as of a date other than the date hereof) are correct on and as of the date
hereof as though made on and as of the date hereof.
(d) No Termination Event. No event has occurred and is
continuing that constitutes a Termination Event.
Section 4. Reference to and Effect on the Transfer and
Administration Agreement.
(a) Except as specifically amended and modified above, the
Agreement is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as waiver of any right, power or remedy of the
Company under the Agreement, nor constitute a waiver of any provision of
the Agreement.
Section 5. Execution in Counterparts. This amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
Section 6. Successors and Assigns. This Amendment shall
bind, and the benefits hereof shall inure to the parties hereof and their
respective successors and permitted assigns; provided, however, the
Transferor may not assign any of its rights or delegate any of its duties
under this Amendment without the prior written consent of the Company.
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Section 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW
YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 8. Severability. Any provisions of this Amendment
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Kevin P. Burns
---------------------------------
Name: Kevin P. Burns
Title: Vice President
NORDSTROM NATIONAL CREDIT BANK,
as Transferor
By: /s/ Kevin Knight
---------------------------------
Name: Kevin Knight
Title: Chairman/CEO
BANK OF AMERICA, N.A.,
as Agent and Bank Investor
By: /s/ Elliott Lemon
---------------------------------
Name: Elliott Lemon
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
as Bank Investor
By: /s/ Robert Bottamedi
---------------------------------
Name: Robert Bottamedi
Title: Vice President
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