AMENDMENT NO. 1 TO CREDIT FACILITIES
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT FACILITIES AND REIMBURSEMENT
AGREEMENT (this "Agreement") is made and entered into as of this 14th
day of January, 1997 among:
PROFFITT'S, INC., a Tennessee corporation having a 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 October 11,
1996 (the "Credit Agreement"), pursuant to which the Lenders agreed to
make certain Advances to the Borrower;
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:
Section 8.09 is amended to add a new subsection (ix) thereto
which shall read in its entirety as follows:
"(ix) wholly owned Subsidiaries of the Borrower or
its Subsidiaries created and operating for the exclusive
purpose of conducting the accounts receivable securitization
of the Borrower and its Subsidiaries in the ordinary course of
business and consistent with past practice not to exceed
$30,000,000; provided further, investments made in such
Subsidiaries on or prior to the date hereof and the retained
earnings of such Subsidiaries as of the date hereof may be
transferred between such Subsidiaries or between the parent
and such Subsidiary without limitation."
3. 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 most recent financial
reports of the Borrower dated November 2, 1996 received by the
Agent and the Lenders under Section 7.01(b) 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 most recent
financial report of the Borrower and its Subsidiaries dated
November 2, 1996 received by the Agent and the Lenders under
Section 7.01(b) 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 exists 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.
4. Conditions Precedent. The effectiveness of this Agreement is
subject to the following:
(a) The Agent shall have received:
(i) eighteen (18) counterparts of this Agreement duly
executed by the Required Lenders; and
(ii) copies of all additional agreements, instruments
and documents which the Agent may reasonably request, such
documents, when appropriate, to be certified 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.
5. 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 canceled 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.
6. 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.
7. 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.
8. Governing Law. This Amendment Agreement shall in all respects
be governed by the laws and judicial decisions of the state of
Tennessee.
9. 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.
10. Credit Agreement. All references in any of the Loan Documents
to the Credit Agreement shall mean the Credit Agreement as amended
hereby.
11. 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.
12. 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 (ii) reaffirm their obligations
set forth in the Guaranty.
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.
PROFFITT'S, INC.
By: _______________________________
Title: Chief Financial Officer and
Executive Vice President
ATTEST:
- ------------------------
Asst. Secretary
(Seal)
Agent:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
as Agent for the Lenders
By: _________________________
Title: Vice President
Lenders:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
By: __________________________
Title: _______ Vice President
NATIONAL CITY BANK, KENTUCKY
By: __________________________
Title: __________ Vice President
SOUTHTRUST BANK OF ALABAMA, N.A.
By: __________________________
Title: ________________________
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
Cayman Islands Branch
By: __________________________
Title: ________________________
By: __________________________
Title: ________________________
DEPOSIT GUARANTY NATIONAL BANK
By: __________________________
Title: Senior Vice President
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: __________________________
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: __________________________
Title: Relationship Manager
AMSOUTH BANK OF ALABAMA
By: __________________________
Title: Vice President
BANK OF AMERICA ILLINOIS
By: __________________________
Title: Vice President
HIBERNIA NATIONAL BANK
By: __________________________
Title: National Accounts Representative
FIRST AMERICAN NATIONAL BANK
By: __________________________
Title: Vice President
NORWEST BANK IOWA, N.A.
By: __________________________
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: __________________________
Title: Managing Director
CREDIT LYONNAIS ATLANTA AGENCY
By: __________________________
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:_______________________________
Title: Senior Vice President
Acknowledged, agreed and consented to, this the _____ day of January,
1996.
PROFFITT'S INVESTMENTS, INC.
PDS AGENCY, INC.
McRAE'S, INC.
McRAE'S OF ALABAMA, INC.
YOUNKERS, INC.
PARISIAN, INC.
PROFFITT'S OF TRI-CITIES, INC.
PARISIAN OF TENNESSEE, INC.
PARISIAN MANAGEMENT CO.
HESS SPECIALTY DEPARTMENT
STORE, LLC
By:
________________________
Name: Douglas E. Cotharp
Nations Bank
600 Peachtree Street, N.E.
21st Floor
Atlanta, GA 30308-2213
NATIONS BANK
February 24, 1997
Proffitt's, Inc.
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: Mr. Douglas E. Coltharp
Re: $275,000,000 Credit Facilities and Reimbursement Agreement among
NationsBank of Texas, National Association, as Agent, the
Lenders party thereto and Proffitt's, Inc.
Dear Ladies and Gentlemen:
Reference is hereby made to that certain Credit Facilities and
Reimbursement Agreement dated as of October 11, 1996, as amended by that
certain Amendment No. 1 to Credit Facilities and Reimbursement Agreement
dated as of January 14, 1997 (the "Credit Agreement") by and among
Proffitt's, Inc. (the "Borrower"), NationsBank of Texas, National
Association, as Agent (the "Agent"), and the Lenders party thereto (the
"Lenders"). Capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement.
As set forth in that certain request letter dated February 11, 1997 from
Mr. Douglas E. Coltharp (the "Request Letter"), a copy of which is
attached hereto, the Borrower is considering selling seven (7) Virginia
based Proffitt's division stores to Dillard Department Stores, Inc. The
proposed sale is only for the fixed assets of such stores. The Borrower
warrants that the representations set forth in the Request Letter are
true and accurate and further acknowledges that the Agent and Lenders
are each relying on such representations.
Section 2.09(b) of the Credit Agreement requires that Net Proceeds in
excess of $10,000,000 during any consecutive twelve (12) month period be
used to reduce permanently the Total Revolving Credit Commitment. The
Borrower estimates the excess Net Proceeds will be approximately
$7,950,000 and request that the Agent and Lenders to waive the
requirements of Section 2.09(b) as it pertains to the sale of the fixed
assets of the seven (7) Virginia stores and the application of excess
Net Proceeds as a permanent reduction to the Total Revolving Credit
Commitment.
Pursuant to the request of the Borrower as set forth in the Request
Letter and in accordance with Section 11.06 of the Credit Agreement, the
Agent and the Lenders hereby waive the requirements of Section 2.09(b)
of the Credit Agreement solely as it pertains to the application of
excess Net Proceeds from the sale of the fixed assets of the seven (7)
Virginia stores and further agree that none of the sale proceeds from
the sale of the fixed assets of the seven (7) Virginia stores shall
count against the $10,000,000 Net Proceeds threshold set forth in
Section 2.09(b) as measured during any twelve (12) month period which
includes the date on which such sale occurs; provided, however, nothing
contained herein shall be deemed a future waiver of Section 2.09(b) or
a waiver of any other term or provision of the Credit Agreement or any
other Loan Document.
The Borrower hereby acknowledges that the waivers contained in this
letter are granted by the Agent and the Lenders only for the limited
purpose set forth herein and each term and provision of the Credit
Agreement continues in full force and effect. The waivers are granted
only for the specific instance specified herein and in no manner creates
a course of dealing or otherwise impairs the further ability of the
Agent or the Lenders to declare a default under or otherwise enforce the
terms of the Credit Agreement.
None of the terms or conditions of this Letter Agreement may be changed,
modified, waived, or canceled, except by writing signed by all the
parties hereto, specifying such change, modification, waiver, or
cancellation. Except as otherwise specifically set forth herein, the
Credit Agreement and all the other Loan Documents are hereby confirmed
and ratified in all respects and shall remain in full force and effect
according to their respective terms.
This Letter Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party
whose signature appears thereon, and all of which shall together
constitute one instrument.
Sincerely yours,
Kathryn W. Robinson
Senior Vice President
CONSENT TO
this 28th day of February, 1997
Agent:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent for the Lenders
By:
------------------------
Kathryn W. Robinson
Lenders:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By:
--------------------------
Title: Senior Vice President
NATIONAL CITY BANK, KENTUCKY
By:
---------------------------
Title: Vice President
SOUTHTRUST BANK OF ALABAMA, N.A.
By:
---------------------------
Title: Vice President
DG BANK DEUTSCHE GENOSSENSCHAFTBANK
Cayman Islands Branch
By:
----------------------------
Title: Senior Vice President
By:
----------------------------
Title: Assistant Vice President
DEPOSIT GUARANTY NATIONAL BANK
By:
----------------------------
Title: Senior Vice President
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:
----------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By:
----------------------------
Title: Relationship Manager
AMSOUTH BANK OF ALABAMA
By:
----------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By:
----------------------------
Title: Vice President
HIBERNIA NATIONAL BANK
By:
----------------------------
Title: National Accounts Representative
FIRST AMERICAN NATIONAL BANK
By:
-----------------------------
Title: Vice President
NORWEST BANK IOWA, N.A.
By:
-----------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By:
----------------------------
Title: Managing Director
CREDIT LYONNAIS ATLANTA AGENCY
By:
----------------------------
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------
Title: Senior Vice President
Acknowledged, agreed and consented to, this the 28th day of February,
1997.
Borrower:
PROFFITT'S, INC.
By:__________________________
Name:________________________
Title:_________________________
Guarantors:
McRAE'S, INC.
McRAE'S OF ALABAMA, INC.
YOUNKERS, INC.
PARISIAN, INC.
PROFFITT'S OF TRI-CITIES, INC.
McRAE'S STORES PARTNERSHIP
G.R. HERBEGERS, INC.
By: ________________________________
Name:________________________________
Title: ______________________________
AMENDMENT TO YOUNKERS, INC.
DEFERRED COMPENSATION AGREEMENT
It is agreed that the distribution provisions of each of the Deferred
Compensation Agreements between Younkers, Inc. ("Younkers") and W.
Thomas Gould (the "Employee"), dated June 10, 1985, January 1, 1987,
January 1, 1988 and December 28, 1988, as amended effective September
30, 1991 (the "1991 Amendment"), are hereby amended effective February
13, 1997, as follows:
1. The first sentence of Paragraph 2 (a) of the 1991 Amendment is
amended to read in its entirety as follows:
(a) Following termination of the services of the Employee with
Proffitt's, Inc. ("Proffitt's) for any reason (including but not
limited to death, total and limited disability, retirement and
voluntary termination as an employee), Proffitt's shall distribute to
Employee or his beneficiary(ies), pursuant to paragraph (b) below,
shares of Proffitt's stock represented by the units in said Stock
Account, together with any assets credited to the Cash Account
(including interest).
2. Paragraph 2 (b) of the 1991 Amendment is amended to read in its
entirety as follows:
(b) Upon the first to occur of the Employee's termination of
employment, death or total and permanent disability, all benefits
payable hereunder (including without limitation, all interest credits
thereof) shall be paid on the first business day in January of the
year immediately following such event.
IN WITNESS WHEREOF, the parties have execute this Amendment on the
date and year first above written.
PROFFITT'S, INC.
By: __________________________
R. Brad Martin
Chairman of the Board of
Directors and Chief
Executive Officer
EXECUTIVE
____________________________
W. Thomas Gould
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