SECOND AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT
This SECOND AMENDMENT TO TRANSFER AND ADMINISTRATION
AGREEMENT (this "Amendment"), dated as of July 23rd, 1998 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 NATIONSBANK, 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 date as of August
14th, 1996, as amended by the First Amendment thereto, dated as of August
19th, 1997 (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 11th, 1999.";
In Section 3.1 of the Agreement, the following subclause (p) shall be
inserted immediately follow subclause (o):
(P) Year 2000 Compliance. The Transferor has initiated 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 Receivable (the "Receivable System") and has determined
that such Receivable Systems will be, reasonably expected on a timely basis
to be able to perform properly date-sensitive functions for all dates before
and after January 1st, 2000 (that is be "Year 2000 Compliant").
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In Section 3.3 of the Agreement, the following subclause (k) shall be
inserted immediately following subclause (j):
(K) Year 2000 Covenant. The Transferor will promptly notify the Agent in
the event the Transferor discovers or determines that any computer
application (including those of its suppliers, vendors and customers) that
is necessary for the origination, collection, management, or servicing of
the Receivable will not be Year 2000 Compliant on or before January 1st,
1999 and thereafter. The Transferor will deliver simultaneously with any
quarterly or annual financial statements or reports to be delivered under the
Agreement, a letter signed by an appropriate officer that no material event,
problems or conditions have occurred which would prevent or delay the
Transferor's plan to become Year 2000 Compliant.
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.
(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. The 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.
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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 insure 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.
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 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/ Stewart Cutler
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Name: Stewart Cutler
Title: Vice President
NORDSTROM NATIONAL CREDIT BANK,
as Transferor
By: /s/ Kevin Knight
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Name: Kevin Knight
Title: President
NATIONSBANK, N.A.,
as Agent and Bank Investor
By: /s/ Michelle M. Heath
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Name: Michelle M. Heath
Title: Senior Vice President
ABN AMRO BANK N.V., SEATTLE BRANCH
as Bank Investor
By: /s/ Susan Hendrixson / Leif H. Olsson
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Name: Susan Hendrixson / Leif H. Olsson
Title: Vice President/Senior Vice President
BANK OF AMERICA, N.T. & S.A.
as Bank Investor
By: /s/ Jack T. Wagler
---------------------------------------
Name: Jack T. Wagler
Title: as Attorney-In-Fact
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
as Bank Investor
By: /s/ Robert Bottamedi
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Name: Robert Bottamedi
Title: Vice President