AMENDMENT NO. 3 TO CREDIT FACILITIES
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT FACILITIES AND REIMBURSEMENT
AGREEMENT (this "Agreement") is made and entered into as of this
25th day of October, 1995 among:
PROFFITT'S, INC., a Tennessee corporation having its principal
place of business in Alcoa, Tennessee (the "Borrower"); and
Each lender executing and delivering a signature page hereto
(hereinafter such lenders may be referred to individually as a
"Lender" or collectively as the "Lenders"); and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the
United States of America ("NationsBank"), in its capacity as agent
for the Lenders (in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent have entered
into a Credit Facilities and Reimbursement Agreement dated as of
March 31, 1994, pursuant to which the Lenders agreed to make
certain Advances to the Borrower;
WHEREAS, the Borrower, the Lenders and the Agent amended the
Credit Agreement pursuant to Amendment No. 1 to Credit Facilities
and Reimbursement Agreement dated as of November 15, 1994
("Amendment No. 1") and Amendment No. 2 to Credit Facilities and
Reimbursement Agreement dated as of March 7, 1995 ("Amendment No.
2") (as amended, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Credit Agreement
be amended in the manner set forth herein and the Agent and the
Lenders are willing to agree to such amendment;
NOW, THEREFORE, in consideration of the mutual covenants and
the fulfillment of the conditions set forth herein, the parties
hereto do hereby agree as follows:
1. Definitions. Any capitalized terms used herein without
definition shall have the meaning set forth in the Credit
Agreement.
2. Amendment. Subject to the terms and conditions set forth
herein, and in accordance with Section 11.06 of the Credit
Agreement, the Credit Agreement is hereby amended as follows:
(a) The definition of "Borrowing Base Factor" in Section
1.01 is hereby amended and restated in its entirety to read as
follows:
" ' Borrowing Base Factor' means 55%;"
(b) Section 7.20 (i) is hereby amended and restated in
its entirety to read as follows:
7.20 New Subsidiaries. Simultaneously with the
acquisition or creation of any subsidiary, or upon any previously
existing Persons becoming a Subsidiary, cause to be delivered to
the Agent for the benefit of the Lenders each of the following:
(i) a Guaranty executed by such Subsidiary, with
appropriate insertions of identifying information and such other
changes to which the Agent may consent in its discretion;
(c) Section 8.04 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
8.04 Consolidated Fixed Charge Ratio. Permit at any
time during any Four-Quarter Period of the Borrower ending during
the periods set forth below, the Consolidated Fixed Charge Ratio
for such Four Quarter Period to be equal to or less than the ratios
set forth opposite the respective periods below:
Period Ratio
Closing Date through and
including January 31, 1997 1.50 to 1.00
February 1, 1997 through
and including May 2, 1997 1.60 to 1.00
May 3, 1997 and thereafter 1.75 to 1.00
(d) Section 8.06 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
8.06 Consolidated Funded Indebtedness to EBITDA.
Permit at any time the ratio of Consolidated Funded Indebtedness to
Consolidated EBITDA to be equal to or greater than the following
ratios set forth opposite the following periods below:
Period Ratio
Closing Date through and
including January 27, 1995 4.50 to 1.00
January 28, 1995 3.50 to 1.00
January 29, 1995 through and
including February 2, 1996 3.90 to 1.00
February 3, 1996 through and
including January 31, 1997 3.60 to 1.00
February 1, 1997 3.25 to 1.00
First, second and fourth
quarter of each Fiscal Year
commencing with Fiscal Year 1997 3.25 to 1.00
Third quarter of each Fiscal
Year commencing with iscal Year 1997 3.50 to 1.00
3. Waivers. The Agent and the Lenders hereby waive any
Default or Event of Default created under Section 8.05 of the
Credit Agreement with respect to and for the twelve month period
ending October 28, 1995.
4. Representations and Warranties. In order to induce the
Agent and the Lenders to enter into this Agreement, the Borrower
represents and warrants to the Agent and the Lenders as follows:
(a) The representations and warranties made by Borrower
in Article VI of the Credit Agreement are true and correct on and
as of the date hereof;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, since the date of the most recent
financial reports of the Borrower received by the Agent and the
Lenders under Section 7.01(a) of the Credit Agreement, other than
changes in the ordinary course of business;
(c) The business and properties of the Borrower and
its Subsidiaries, taken as a whole, are not, and since the date of
the most recent financial report of the Borrower and its
Subsidiaries received by the Agent and the Lenders under Section
7.01(a) of the Credit Agreement, have not been adversely affected
in any substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout,combination of workers,
flood, embargo, riot, activities of armed forces, war or acts of
God or the public enemy, or cancellation or loss of any major
contracts; and
(d) No event has occurred and is continuing which
constitutes, and no condition exist which upon the consummation of
the transaction contemplated hereby would constitute a Default or
an Event of Default on the part of the Borrower under the Credit
Agreement.
5. Conditions Precedent. The effectiveness of this
Agreement is subject to the receipt by the parties hereto of the
following:
(a) The Agent shall have received:
(i) eight (8) counterparts of this Agreement duly
executed by all signatories hereto;
(ii) copies of all additional agreements,
instruments and documents which the Agent may reasonably request,
such documents, when appropriate, to be certifie by appropriate
governmental authorities.
(b) All proceedings of the Borrower relating to the
matters provided for herein shall be satisfactory to the Lenders,
the Agent and their counsel.
6. Entire Agreement. This Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter. No
promise, condition, representation or warranty, express or implied,
not herein set forth shall bind any party hereto, and not one of
them has relied on any such promise, condition, representation or
warranty. Each of the parties hereto acknowledges that, except as
in this Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by
any party to the other. None of the terms or conditions of this
Agreement may be changed, modified, waived or cancelled orally or
otherwise, except by writing, signed by all the parties hereto,
specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any proceeding or succeeding breach
thereof.
7. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified, waived or supplemented, the Credit
Agreement and all other Loan Documents are hereby confirmed and
ratified in all respects and shall remain in full force and effect
according to their respective terms.
8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original
as against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument.
9. Governing Law. This Amendment Agreement shall in all
respects be governed by the laws and judicial decisions of the
state of Tennessee.
10. Enforceability. Should any one or more of the provisions
of this Agreement be determined to be illegal or unenforceable as
to one or more of the parties hereto, all other provisions
nevertheless shall remain effective and binding on the parties
hereto.
11. Credit Agreement. All references in any of the Loan
Documents to the Credit Agreement shall mean the Credit Agreement
as amended hereby.
12. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the Borrower, the Lenders
and the Agent and their respective successors, assigns and legal
representatives; provided, however, that the Borrower, without the
prior consent of the Agent, may not assign any rights, powers,
duties or obligations hereunder.
13. Consent of Guarantors. Each of the Guarantors by their
execution and delivery hereof (i) consent and agree to the
amendments to the Credit Agreement set forth herein and in
Amendment No. 1 and Amendment No. 2 and (ii) reaffirm their
obligations set forth in each Guaranty. Parks-Belk Company hereby
acknowledges and agrees that as a result of the amendment of
Section 7.20 (i) of the Credit Agreement hereby the limitation set
forth in the third paragraph of Section 1 of the Guaranty Agreement
dated as of March 7, 1995 among the Guarantors party thereto and
the Agent is no longer applicable and shall be of no force or
effect and is deleted hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers,
all as of the day and year first above written.
BORROWER
ATTEST: PROFFITT, INC.
By:___________________ By:_________________________
Name:_________________ Name:_______________________
Title:________________ Title:______________________
(CORPORATE SEAL)
LENDERS:
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION
By:_________________________
Name:_______________________
Title:______________________
FIRST AMERICAN NATIONAL BANK
By:_________________________
Name:_______________________
Title:______________________
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
By:_________________________
Name:_______________________
Title:______________________
TRUST COMPANY BANK
By:_________________________
Name:_______________________
Title:______________________
By:_________________________
Name:_______________________
Title:______________________
(Signature Page 1 of 2)
DEPOSIT GUARANTY NATIONAL BANK
By:_________________________
Name:_______________________
Title:______________________
HIBERNIA NATIONAL BANK
By:_________________________
Name:_______________________
Title:______________________
AGENT:
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:_________________________
Name:_______________________
Title:______________________
Acknowledged, agreed and consented to, this the 25th day of
October, 1995.
PROFFITT'S INVESTMENTS, INC.
PDS AGENCY, INC.
MACCO INVESTMENT, INC.
McRAE'S, INC.
McRAE'S OF ALABAMA, INC.
PARKS ENTERPRISES, INC.
PARKS-BELK COMPANY
By:_________________________
Name:_______________________
Title:______________________
(Signature Page 2 of 2)