AMENDMENT TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT (this "Amendment") dated as of January 30, 1997 to
the TRANSFER AND ADMINISTRATION AGREEMENT, dated as of January 15, 1997,
(the "Agreement") by and among PROFFITT'S CREDIT CORPORATION, a Nevada
corporation, as transferor (in such capacity, the "Transferor"),
PROFFITT'S, INC., a Tennessee corporation ("Proffitt's") in its capacity
as servicer guarantor ("Servicer Guarantor"), MCRAE'S, INC., a Missis-
sippi corporation, as servicer (the "Servicer" or "McRae's"), ENTERPRISE
FUNDING CORPORATION, a Delaware corporation (the "Company") and
NATIONSBANK, N.A., a national banking association ("NationsBank"), as
agent for the Company and the Bank Investors (in such capacity, the
"Agent") and as a Bank Investor.
W I T N E S S E T H :
WHEREAS, the Company, the Transferor, Proffitt's, the Servicer
Guarantor, the Servicer and NationsBank have entered into the Agreement
and wish to amend the Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the parties hereto hereby agree as
follows:
SECTION 1. Defined Terms. Unless otherwise defined herein,
the terms used herein shall have the meanings assigned to such terms in
the Agreement. Terms defined in the Agreement and defined in this
Section 1 are amended hereby and shall have the meanings assigned in
this Section 1. For convenience of reference only, text representing
modifications to the existing language of any definition found in the
Agreement is italicized.
"Account" shall mean all credit or charge accounts established
pursuant to an Account Agreement between (i) each Designated Seller
other than Parisian, Inc. and an Obligor as of the Cut-Off Date and on
any day thereafter, or (ii) Parisian, Inc. and an Obligor as of the
Parisian Cut-Off Date and on any day thereafter. The Accounts shall be
identified by account number and by the Outstanding Principal Balance as
of the Cut-Off Date or as of the Parisian Cut-Off Date, as applicable,
and referred to in the Account Schedule delivered to the Agent on the
Closing Date in the case of (i) above, and on the Effective Date, in the
case of (ii) above, pursuant to Section 2.8, and shall include any
Related Account. Any Account established after the Cut-Off Date and the
Parisian Cut-Off Date also shall be identified on and referred to in the
Account Schedule as such schedule may be amended from time to time
pursuant to Section 2.8.
"Account Agreement" shall mean the credit and charge card
agreements governing the rights and obligations of the applicable
Designated Seller and each obligor using the private label credit card
identified as a "McRae's," "Parisian," "Proffitt's" (or other Designated
Seller) credit card, as parties thereto, and each Federal Truth in Lend-
ing Statement for the Accounts, in substantially the forms attached as
Exhibit A to this Agreement, as such agreements or statement may be
amended, modified or otherwise changed from time to time.
"Credit Guidelines" shall mean (i) the Designated Sellers'
credit and collection policy or policies and practices, relating to
Accounts and Receivables existing on the Closing Date and (ii) with
respect to, and for only so long as there are any, Parisian Receivables,
the Parisian Credit Guidelines, in each case as referred to in Exhibit
B attached hereto, as modified and as supplemented from time to time in
compliance with Section 5.2(c) and 5.2(d).
"Default Ratio" means, with respect to any Collection Period,
the ratio (expressed as a percentage) computed as of the last day of
each Collection Period by dividing (i) the product of (x) 12 and (y) the
aggregate amount of Receivables which became Defaulted Receivables
during such Collection Period by (ii) the aggregate amount of all Re-
ceivables (other than Parisian Receivables and Defaulted Receivables) as
of the last day of the prior Collection Period.
"Defaulted Receivable" means any Receivable other than a
Parisian Receivable: (i) as to which any payment, or part thereof,
remains unpaid for 181 days or more from the original due date for such
Receivable; (ii) as to which an Event of Bankruptcy has occurred and is
continuing with respect to the Obligor thereof; (iii) which has been
identified by the Transferor, the Designated Seller or the Servicer as
uncollectible; or (iv) which, consistent with the Credit Guidelines,
should be written off as uncollectible.
"Delinquency Ratio" means, the ratio (expressed as a
percentage) computed as of the last day of each Collection Period by
dividing (i) the aggregate amount of all Delinquent Receivables as of
such date by (ii) the aggregate amount of all Receivables (other than
Parisian Receivables and Defaulted Receivables) as of such date.
"Delinquent Receivable" means any Receivable other than a
Parisian Receivable: (i) as to which any payment, or part thereof, re-
mains unpaid for more than 30 days from the original due date for such
Receivable and (ii) which is not a Defaulted Receivable.
"Designated Seller" means (i) Proffitt's, Inc., a Tennessee
corporation, (ii) McRae's, Inc. a Mississippi corporation, (iii)
Parisian, Inc., an Alabama corporation, and until merged with and into
Parisian, Inc., Parisian Services, Inc. and (iv) any other Person desig-
nated with the written consent of the Agent as the "seller" under any
Receivables Purchase Agreement, and in each case such Person's succes-
sors and permitted assigns.
"Dilution Ratio" shall mean the ratio (expressed as a
percentage) computed as of the last day of each Collection Period by
dividing (i) the aggregate amount by which Receivables are reduced or
cancelled as a result of any defective, rejected or returned merchandise
or services and all credits, rebates, discounts, disputes, warranty
claims, repossessed or returned goods, chargebacks, allowances, or any
other downward adjustments to the balance of such Receivable without
receiving Collections therefor and prior to such Receivable becoming a
Defaulted Receivable or a Parisian Charge-Off, (whether effected through
the granting of credits against the applicable Receivables or by the
issuance of a check or other payment in respect of (and as payment for)
such reduction) by a Designated Seller, the Transferor or the Servicer,
provided to Obligors in respect of Receivables during such month by (ii)
the aggregate Outstanding Principal Balance of all Receivables as of the
last day of the preceding Collection Period.
"Effective Date" means the date occurring after all conditions
precedent described in Section 19 of this Amendment have been fulfilled
on which each of the Company, the Transferor, Proffitt's, the Servicer
Guarantor, the Servicer and NationsBank shall have executed and deliv-
ered one or more counterparts of this Amendment and each shall have re-
ceived one or more counterparts of this Amendment executed by the
others.
"Eligible Account" shall mean, as of the Cut-Off Date or, with
respect to Accounts related to Parisian Receivables, as of the Parisian
Cut-Off Date (and, with respect to Accounts arising after the Cut-Off
Date and the Parisian Cut-Off Date, as applicable, as of the date of
creation), each Account in existence and owned by a Designated Seller:
(a) which is payable in United States Dollars;
(b) the credit card or cards related thereto have not been
reported lost or stolen or designated fraudulent;
(c) the Obligor on which has provided, as its most recent
billing address, an address located in the United States or its territo-
ries or possessions, or Canada, or which is a United States military
address;
(d) which is not an Account as to which any of the Receiv-
ables existing thereunder are Defaulted Receivables or Receivables that
have been otherwise charged-off or written-off as uncollectible;
(e) which has been created by a Designated Seller in the
ordinary course of its business in accordance with, or under standards
no less stringent than, the Credit Guidelines;
(f) with respect to which the applicable Designated Seller
has good title thereto, free and clear of all Adverse Claims; and
(g) the Obligor on which has not been identified by the
Servicer or the Transferor, as applicable, in its computer files as
having (i) died, (ii) commenced, or had commenced in respect of such
Obligor, a case, action or proceeding under any law of any jurisdiction
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking relief with respect to such Obligor's debts, or seeking to have
such Obligor adjudicated bankrupt or insolvent, or to have a receiver,
trustee, custodian or other similar official appointed for such Obligor
or for all or any substantial part of such Obligor's assets or (iii)
made a general assignment of such Obligor's assets for the benefit of
such Obligor's creditors, which assignment is then in full force and
effect.
"Eligible Receivable" means, at any time, any Receivable:
(a) with respect to which, the related Account is an Eligible
Account;
(b) which has been originated by a Designated Seller in the
ordinary course of its business, sold to the Transferor pursuant to (and
in accordance with) the Receivables Purchase Agreement and to which the
Transferor has good title thereto, free and clear of all Adverse Claims;
(c) which (together with the Collections and Related Security
related thereto) has been the subject of either a valid transfer and
assignment from the Transferor to the Agent, on behalf of the Company
and the Bank Investors, of all of the Transferor's right, title and
interest therein or the grant of a first priority perfected security
interest therein (and in the Collections and Related Security related
thereto), effective until the termination of this Agreement;
(d) which arises pursuant to an Account with respect to which
the applicable Designated Seller and the Transferor has performed all
obligations required to be performed by it thereunder, including without
limitation shipment of the merchandise and/or the performance of the
services purchased thereunder;
(e) a purchase of which with the proceeds of Commercial Paper
would constitute a "current transaction" within the meaning of Section
3(a)(3) of the Securities Act of 1933, as amended;
(f) which is an "account" or a "general intangible" or
"chattel paper" within the meaning of Article 9 of the UCC of all appli-
cable jurisdictions;
(g) which arises under an Account that, together with such
Receivable, is in full force and effect and constitutes the legal, valid
and binding obligation of the related Obligor enforceable against such
Obligor in accordance with its terms and is not subject to any
litigation, right of rescission, dispute, offset, counterclaim or other
defense;
(h) which was created in compliance, in all material re-
spects, with all laws, rules or regulations applicable thereto (in-
cluding, without limitation, laws, rules and regulations relating to
truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and
pursuant to an Account Agreement which complies, in all material re-
spects, with all such laws, rules and regulations;
(i) which (A) satisfies all applicable requirements of the
Credit Guidelines, (B) has not been waived or modified except in
accordance with the Credit Guidelines, and (C) is assignable without the
consent of, or notice to, the Obligor thereunder;
(j) the Obligor of which has been directed to make all
payments to a specified account of the Servicer with respect to which
there shall be a Lock-Box Agreement in effect;
(k) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with,
any Governmental Authority required to be obtained, effected or given by
the Transferor or by the applicable Designated Seller in connection with
the creation of such Receivable or the execution, delivery, creation and
performance by the Transferor or by the applicable Designated Seller of
the Account Agreement pursuant to which such Receivable was created,
have been duly obtained, effected or given and are in full force and
effect;
(l) the assignment of which under the Receivables Purchase
Agreement by the applicable Designated Seller and hereunder by the
Transferor does not violate, conflict or contravene any applicable laws,
rules, regulations, orders or writs or any contractual or other re-
striction, limitation or encumbrance; and
(m) as to which the Obligor has not exceeded its credit limit
by an amount in excess of the greater of (i) $300 or (ii) 10% of such
credit limit as determined as of each cycle closing date, except for
exceptions which are immaterial in the aggregate.
"Facility Limit" means $300,000,000; provided that such amount
may not at any time exceed the aggregate Commitments at any time in
effect; provided, further, that (i) if after the occurrence of a
Parisian Termination Event, the Buyer's Percentage Factor (calculated
without giving effect to the inclusion of any Parisian Receivables) is
equal to or less than the Maximum Buyer's Percentage Factor, the Facili-
ty Limit shall mean $175,000,000, and (ii) from and after the Termina-
tion Date the Facility Limit shall at all times equal the Net Investment
plus the Aggregate Interest Component.
"Finance Charge Collections" shall mean that portion of the
Collections with respect to the Receivables which are properly
designated in the Accounts as Finance Charges, together with (i) any
Recoveries (net of liquidation expenses, if any) in respect of Defaulted
Receivables, Parisian Charge-Offs and Related Security with respect
thereto and (ii) all Discount Receivable Collections.
"Net Portfolio Yield" shall mean, with respect to any
Collection Period, the annualized percentage equivalent of a fraction
the numerator of which is Finance Charge Collections less the Carrying
Costs for such Collection Period less the aggregate outstanding balance
of all Receivables which became Defaulted Receivables during such
Collection Period less Parisian Charge-Offs for such Collection Period
less the Servicing Fee with respect to such Collection Period and the
denominator of which is the daily average aggregate Outstanding Princi-
pal Balance of all Receivables during such Collection Period.
"Outstanding Principal Balance" means, with respect to any Re-
ceivable at any time, the then outstanding principal amount thereof
excluding any accrued and outstanding Finance Charges related thereto
and giving effect to the amount of any credit balances and other adjust-
ments existing with respect to such Receivable on such day. The out-
standing principal amount of (i) any Defaulted Receivables and (ii) any
Parisian Receivable written off as uncollectible shall be considered to
be zero for the purposes of any determination hereunder of the aggregate
Outstanding Principal Balance of the Receivables or the aggregate
Outstanding Principal Balance of Eligible Receivables.
"Parisian Amortization Period" means the period of time
commencing upon the occurrence of a Parisian Termination Event and
ending on the first Business Day following the day upon which the Agent
has released its lien on the Parisian Receivables pursuant to Section
2.15.
"Parisian Charge-Offs" means, for any period of determination,
the aggregate amount of Parisian Receivables written off as
uncollectible during such period in accordance with Parisian's Credit
Guidelines.
"Parisian's Credit Guidelines" shall mean the Parisian, Inc.
credit and collection policy or policies and practices, relating to
Accounts and Parisian Receivables existing on the Parisian Cut-Off Date
and referred to in Exhibit B attached hereto, as modified and supple-
mented in compliance with Section 5.2(c) and 5.2(d).
"Parisian Cut-Off Date" shall mean January 29, 1997.
"Parisian Default Ratio" means, as of the end of any calendar
month, the decimal equivalent of the fraction (expressed as a
percentage) the numerator of which equals the aggregate amount of Pari-
sian Charge-Offs occurring in such period, and the denominator of which
is the aggregate outstanding balance of all Parisian Receivables as of
the last day of the prior Collection Period, excluding from such
balance, without duplication, the amount of Parisian Charge-Offs.
"Parisian Delinquency Ratio" means, as of the end of any
calendar month, the decimal equivalent of a fraction (expressed as a
percentage) the numerator of which is the aggregate outstanding balance
of all Parisian Receivables that are 60 or more days (inclusive) past
due (as determined in accordance with the Parisian Credit Guidelines and
that do not also constitute Parisian Charge-Offs), and the denominator
of which equals the aggregate outstanding balance of all Parisian
Receivables (other than Parisian Charge-Offs) as of the end of such day.
"Parisian Receivables" means the indebtedness owed by any
Obligor and sold to the Transferor pursuant to that certain Receivables
Purchase Agreement dated as of the date hereof, between the Transferor,
as purchaser thereunder, Parisian, Inc. and Parisian Services, Inc.,
each as seller thereunder and McRae's, Inc., as servicer thereunder,
whether constituting an account, chattel paper, instrument, investment
property or general intangible, and arising in connection with the sale
or lease of merchandise or the rendering of services, and includes the
right to payment of any Finance Charges and other obligations of such
Obligor with respect thereto. A Parisian Receivable shall be deemed to
have been created or the amount thereof increased as of the end of the
day on the Date of Processing of such Parisian Receivable or such in-
crease to the amount thereof.
"Parisian Termination Event" shall mean (i) the occurrence, as
of the last day of any calendar month, of either of the following: (A)
the three month average of the Parisian Delinquency Ratio has exceeded
4.0% for two consecutive months, or (B) the three month average of the
Parisian Default Ratio has exceeded 7.0% for two consecutive months, or
(ii) the failure of Parisian, Inc. to convert the Parisian Credit
Guidelines and related accounts receivable management systems to the
systems employed by Proffitt's, Inc. and McRae's, Inc. on or prior to
September 30, 1997.
"Receivable" means the indebtedness owed to a Designated
Seller by any Obligor (without giving effect to any purchase under the
Receivables Purchase Agreement by the Transferor at any time) under an
Account and sold by such Designated Seller to the Transferor pursuant to
a Receivables Purchase Agreement, whether constituting an account, chat-
tel paper, instrument, investment property or general intangible, aris-
ing in connection with the sale or lease of merchandise or the rendering
of services, and includes the right to payment of any Finance Charges
and other obligations of such Obligor with respect thereto. A
Receivable shall (i) be deemed to have been created or the amount
thereof increased as of the end of the day on the Date of Processing of
such Receivable or such increase to the amount thereof and (ii) from and
after the time the Agent shall have released its lien on the Parisian
Receivables pursuant to Section 2.15, shall not include in its meaning,
any Parisian Receivable.
"Recoveries" shall mean all amounts received or collected by
the Servicer with respect to Defaulted Receivables plus the aggregate
amount of cash received during such period (net of out-of-pocket collec-
tion expenses, including reasonable attorneys' fees, of persons other
than Parisian or Parisian Services, Inc.) on Parisian Receivables
previously written off as uncollectible in accordance with Parisian's
Credit Guidelines.
"Related Account" shall mean an Account having the following
characteristics: (i) such Related Account was originated in accordance
with the applicable Credit Guidelines; (ii) the Obligor or Obligors with
respect to such Related Account is the same Person or Persons as the
Obligor or Obligors of an Account; (iii) such Related Account is
originated as a result of the credit card with respect thereto being
lost or stolen; and (iv) such Related Account can be traced or
identified as a successor account to an Account by reference to or by
way of the computer or other records of the Servicer or the Transferor.
SECTION 2. Amendment to Section 2.5 ("Allocations of
Collections; Non-Liquidation Settlement and Reinvestment Procedures;
Servicer Advances"). (a) Clause (v) of Section 2.5(a) of the Agreement
is hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language in this
subsection is italicized):
"(v) fifth, with respect to any Remittance Date
occurring on or after the Termination Date, to the payment of
the Buyers' Percentage Factor of the sum of (A) the outstand-
ing balance of Receivables which have become Defaulted Receiv-
ables during such Collection Period plus (B) Parisian Charge-Offs for
such Collection Period, which payment shall be treat-
ed as a portion of Principal Collections allocable to the
Company and applied pursuant to Section 2.5(b) below;"
(b) The first paragraph of subsection (b) of Section 2.5 is
hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language in this
subsection is italicized):
"On each Remittance Date occurring (x) prior to the
Termination Date and (y) at any time other than during the
Parisian Amortization Period, (i) the Servicer shall allocate
to the Company and/or the Bank Investors the Buyers' Percent-
age Factor of Principal Collections received during the
related Collection Period and not previously applied or ac-
counted for and, at the Transferor's option, (A) pay such
amount to the Transferor, for the benefit of the Company
and/or the Bank Investors, and the Transferor shall apply such
amount toward the purchase of additional undivided percentage
interests in each Receivable pursuant to Section 2.2(b), or
(B) pay such amount to the Agent in reduction of the Net In-
vestment and (ii) the Servicer shall pay to the Transferor the
portion of such Principal Collections not allocated to the
Transferred Interest and remaining after any reallocations
pursuant to Section 2.5(c) below.
(c) The second paragraph of subsection (b) of Section 2.5 is
hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language in this
subsection is italicized):
"On each Remittance Date during the Parisian Amortization
Period, or immediately following the Parisian Amortization
Period if the Parisian Amortization Period ends subsequent to
the immediately preceding Remittance Date, or on or subsequent
to the Termination Date, the Servicer shall allocate to the
Company or the Bank Investors, as applicable, the Buyers'
Percentage Factor of all Principal Collections received during
the related Collection Period and not previously applied or
accounted for and pay such amount to the Agent in reduction of
the Net Investment. In the event that either the Parisian
Amortization Period has commenced or the Termination Date oc-
curred as a result of a Termination Event, the portion of such
Principal Collections not allocated to the Transferred In-
terest and remaining after any reallocations pursuant to
Section 2.5(c) below shall be distributed to the Agent in
reduction of the Net Investment and, in the case of any other
Termination Date, the portion of such Principal Collections
not allocated to the Transferred Interest and remaining after
any allocations pursuant to Section 2.5(c) below shall be dis-
tributed to the Transferor."
SECTION 3. Amendment to Section 2.6 ("Liquidation Settlement
Procedures"). (a) The first paragraph of Section 2.6 is hereby deleted
in its entirety and replaced with the following text (solely for conve-
nience of reference, the revised language in this subsection is itali-
cized):
"If, on the Termination Date or the first day of the
Parisian Amortization Period the Buyers' Percentage Factor is
greater than the Maximum Buyers' Percentage Factor, then the
Transferor shall immediately pay to the Agent, for the benefit
of the Company or the Bank Investors, as applicable, from
previously received Principal Collections, an amount equal to
the amount that, when applied in reduction of the Net Invest-
ment, will result in a Buyers' Percentage Factor less than or
equal to the Maximum Buyers' Percentage Factor. Such amount
shall be applied by the Agent to the reduction of the Net In-
vestment. On each Remittance Date occurring during the
Parisian Amortization Period or on and following the Termina-
tion Date, Principal Collections shall be applied in accor-
dance with Section 2.5(b)."
SECTION 4. Amendment to Section 2.9 ("Deemed Collections;
Application of Payments"). (a) Subsection (a) of Section 2.9 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"If on any day the Outstanding Principal Balance of a
Receivable is either (x) reduced as a result of any defective,
rejected or returned merchandise or services, any discount,
credit, rebate, dispute, warranty claim, repossessed or
returned goods, chargeback, allowance or any billing
adjustment, or (y) reduced or canceled as a result of a setoff
or offset in respect of any claim by any Person (whether such
claim arises out of the same or a related transaction or an
unrelated transaction) or (z) any other downward adjustments
to the balance of such Receivable without receiving Collec-
tions therefor and prior to such Receivable becoming a
Defaulted Receivable or otherwise being charged off as
uncollectible, the amount of such cancellation, reduction or
adjustment shall thereafter be deducted from the aggregate
Outstanding Principal Balance of the Receivables and the Net
Receivables Balance. If such reduction would result in a
Buyers' Percentage Factor greater than the Maximum Buyers'
Percentage Factor, the Transferor shall pay (or direct the
Servicer to pay from Collections otherwise distributable to
the Transferor) to the Agent, for the benefit of the Company
or the Bank Investors, as applicable, an amount equal to the
amount that, when applied in reduction of the Net Investment,
will result in a Buyers' Percentage Factor less than or equal
to the Maximum Buyers' Percentage Factor. Such amount shall
be applied by the Agent to the reduction of the Net Invest-
ment."
SECTION 5. Addition of New Section 2.15. Article II is
hereby amended by the addition of the following text as a new Section
2.15:
"SECTION 2.15. Removal of Parisian Receivables. Following the
occurrence of a Parisian Termination Event and upon the later
to occur of (A) the Net Worth of the Transferor is at least
equal to the greater of (x) 10% of the highest aggregate
Outstanding Principal Balance of all Eligible Receivables
shown on any Cycle Certificate delivered with respect to the
immediately preceding twelve calendar month period (exclusive
of the principal balance of any Parisian Receivable included
therein) and (y) $10,000,000 and (B) the Buyer's Percentage
Factor (calculated without giving effect to the inclusion of
any Parisian Receivables) is equal to or less than the Maximum
Buyer's Percentage Factor, (i) the Servicer shall cause all
Accounts related to Parisian Receivables to be removed from
the Account Schedule, (ii) the Agent shall execute such
instruments, financing statements and termination statements
(in each case prepared by and at the expense of the
Transferor) as may be necessary under the applicable UCC in
order to release its interest in the Parisian Receivables and
(iii) the term "Parisian Receivables" as used herein shall
have no further meaning or import. The parties hereto agree
that they shall execute and deliver all instruments, financing
statements and amendments thereto and hereto as may be neces-
sary in order to effect the termination of the Agent's
interest in the Parisian Receivables and to cure any ambiguity
resulting from the references herein to Parisian Receivables,
it being expressly understood that, notwithstanding any
contrary provision contained in Section 11.2, any such amend-
ment hereto shall not require the consent of any Bank In-
vestor."
SECTION 6. Amendment to Section 3.1 ("Representations and
Warranties of the Transferor"). (a) The text of subsection (m) of
Section 3.1 is hereby deleted in its entirety and replaced with the
following text (solely for convenience of reference, the revised lan-
guage in this subsection is italicized):
"Coverage Requirement; Amount of Receivables. The Buyers'
Percentage Factor does not exceed the Maximum Buyers'
Percentage Factor. As of the Cut-Off Date, the aggregate Out-
standing Principal Balance of the Receivables in existence was
$168,260,400.40 and the Net Receivable Balance was
$167,778,375.87, and as of the Parisian Cut-Off Date, the
aggregate Outstanding Principal Balance of the Receivables in
existence was $295,394,168 and the Net Receivable Balance was
$294,787,484."
(b) The text of subsection (o) of Section 3.1 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"No Termination Event or Parisian Termination Event. No event
has occurred and is continuing and no condition exists which
constitutes a Termination Event, a Potential Termination Event
or, for so long as there has been no commencement and
completion of a Parisian Amortization Period, a Parisian Ter-
mination Event."
SECTION 7. Amendment to Section 5.2 ("Negative Covenants of
the Transferor"). (a) The text of subsection (e) of Section 5.2 is
hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language in this
subsection is italicized):
"No Mergers, Etc. The Transferor will not, and except as
otherwise permitted pursuant to the Receivables Purchase
Agreement, will not permit any Designated Seller to, (i) con-
solidate or merge with or into any other Person (except for a
merger by a Designated Seller with or into any wholly-owned
subsidiary of such Designated Seller, where the Designated
Seller shall be the surviving entity) or (ii) sell, lease or
transfer all or substantially all of its assets to any other
Person except that McRae's, Inc. may sell substantially all of
its assets (other than Receivables) to a partnership consist-
ing only of McRae's, Inc., as a general partner with at least
90% of the partnership interest, and Parisian, Inc., as a
general partner with not more than 10% of the partnership
interest."
(b) The text of subsection (h) of Section 5.2 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"Change of Name, Etc. The Transferor will not, and will not
permit any Designated Seller to, change its name, identity or
structure or the location of its chief executive office,
unless at least 10 days prior to the effective date of any
such change the Transferor or such Designated Seller, as
applicable, delivers to the Agent and the Collateral Agent (i)
such documents, instruments or agreements, executed by the
Transferor or such Designated Seller, as applicable, as are
necessary to reflect such change and to continue the perfec-
tion of the Agent's and the Collateral Agent's ownership
interests or security interests in the Affected Assets and
(ii) new or revised Lock-Box Agreements executed by the Lock-Box
Banks which reflect such change and enable the Agent to
continue to exercise its rights contained in Section 2.8
hereof; provided, that Parisian Services, Inc. may merge with
and into Parisian, Inc. in compliance with the foregoing upon
less than 10 days advance delivery of the aforementioned
documents, instruments and agreements."
(c) The text of subsection (j) of Section 5.2 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"Other Debt. Except as provided for herein, the Transferor
will not create, incur, assume or suffer to exist any
indebtedness whether current or funded, or any other liability
other than (i) indebtedness of the Transferor representing
fees, expenses and indemnities arising hereunder or under a
Receivables Purchase Agreement for the purchase price of the
Receivables under a Receivables Purchase Agreement, (ii)
indebtedness assumed from Parisian Services, Inc. in
connection with the acquisition of Parisian Receivables from
Parisian Services, Inc. and (iii) other indebtedness incurred
in the ordinary course of its business in an amount not to
exceed $9,750 at any time outstanding."
(d) The text of subsection (l) of Section 5.2 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"Payment to the Designated Sellers. With respect to any
Receivable sold by a Designated Seller to the Transferor, the
Transferor shall, and shall cause such Designated Seller to,
effect such sale under, and pursuant to the terms of, a
Receivables Purchase Agreement, including, without limitation,
the payment by the Transferor either in cash, a contribution
of capital or by increase in the amount of the Subordinated
Note to such Designated Seller, as applicable, of an amount
equal to the purchase price for such Receivable as required by
the terms of the Receivables Purchase Agreement."
SECTION 8. Amendment to Section 5.3 ("Minimum Net Worth of
the Transferor"). (a) The text of subsection (a) of Section 5.3 is
hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language in this
subsection is italicized):
"As of the Effective Date, the Transferor shall have a Net
Worth of at least $24,000,000, provided, however, that on the
first Business Day immediately following the day the Agent has
released its lien on Parisian Receivables pursuant to Section
2.15, the Transferor shall have a Net Worth not less than the
greater of (x) 10% of the highest aggregate Outstanding Prin-
cipal Balance of all Eligible Receivables shown on any Cycle
Certificate delivered with respect to the immediately
preceding twelve calendar month period (exclusive of the
principal balance of any Parisian Receivables included there-
in) and (y) $10,000,000."
SECTION 9. Amendment to Section 5.4 ("Negative Covenants of
the Servicer"). (a) The text of subsection (h) of Section 5.4 is
hereby deleted in its entirety and replaced with the following text
(solely for convenience of reference, the revised language in this
subsection is italicized):
"No Mergers, Etc. The Servicer will not (i) consolidate or
merge with or into any other Person (except for a merger with
or into any wholly-owned subsidiary, where the Servicer shall
be the surviving entity), or (ii) sell, lease or transfer all
or substantially all of its assets to any other Person except
that McRae's, Inc. may sell substantially all of its assets
(other than Receivables) to a partnership consisting only of
McRae's, Inc., as a general partner with at least 90% of the
partnership interest, and Parisian, Inc., as a general partner
with not more than 10% of the partnership interest.
SECTION 10. Amendment to Section 6.1 ("Appointment of
Servicer"). The text of Section 6.1 is hereby deleted in its entirety
and replaced with the following text (solely for convenience of refer-
ence, the revised language in this subsection is italicized):
"The servicing, administering and collection of the Receiv-
ables shall be conducted by such Person (the "Servicer") so
designated from time to time in accordance with this Section
6.1. Until the Company gives notice to McRae's of the desig-
nation of a new Servicer, McRae's is hereby designated as, and
hereby agrees to perform the duties and obligations of, the
Servicer pursuant to the terms hereof. Provided that the
Servicer may delegate its servicing obligations and duties
with respect to the Parisian Receivables to Parisian, Inc.
(and the Agent, by its execution of this Agreement, shall be
deemed to have consented to such delegation), the Servicer may
not delegate any of its rights, duties or obligations hereun-
der, or designate a substitute Servicer, without the prior
written consent of the Agent, and provided that the Servicer
shall continue to remain solely liable for the performance of
the duties as Servicer hereunder notwithstanding any such
delegation hereunder. The Agent may, and upon the direction
of the Majority Investors the Agent shall, after the occur-
rence of a Servicer Default or any other Termination Event
designate as Servicer any Person (including itself) to succeed
McRae's or any successor Servicer, on the condition in each
case that any such Person so designated shall agree to perform
the duties and obligations of the Servicer pursuant to the
terms hereof. The Agent may notify any Obligor of the Trans-
ferred Interest."
SECTION 11. Amendment to Section 6.4 ("Servicer Default").
(a) The text of subsection (a) to Section 6.4 is hereby deleted in its
entirety and replaced with the following text (solely for convenience of
reference, the revised language in this subsection is italicized):
"the Servicer (including any delegate of the Servicer) or, to
the extent that the Transferor or any Affiliate of the Trans-
feror is then acting as Servicer, the Transferor or such
Affiliate, as applicable, shall fail (i) to observe or perform
any term, covenant or agreement hereunder (other than as
referred to in clauses (ii) or (iii) of this Section 6.4(a))
or under any of the other Transaction Documents to which such
Person is a party or by which such Person is bound, and such
failure shall remain unremedied for ten (10) days, or (ii) to
make any payment or deposit required to be made by it hereun-
der when due or the Servicer shall fail to observe or perform
any term, covenant or agreement on the Servicer's part to be
performed under Section 2.8(b) hereof or (iii) to observe or
perform any term, covenant or agreement under Sections 5.4(a),
5.4(b), 5.4(c), 5.4(e), 5.4(f), 5.4(g), 5.4(i) or 5.4(j); or"
(b) The text of subsection (b) to Section 6.4 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"any representation, warranty, certification or statement made
by the Servicer (or any delegate of the Servicer) or the
Transferor or any Affiliate of the Transferor (in the event
that the Transferor or such Affiliate is then acting as the
Servicer) in this Agreement, the Receivables Purchase Agree-
ment or in any of the other Transaction Documents or in any
certificate or report delivered by it pursuant to any of the
foregoing shall prove to have been incorrect in any material
respect when made or deemed made; or"
(c) The text of subsection (c) to Section 6.4 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"failure or the default by the Servicer, any delegate of the
Servicer or any of the Servicer's Subsidiaries in the perfor-
mance of any material term, provision or condition contained
in any agreement under which any Indebtedness greater than
$5,000,000 was created or is governed, if such event is an
"event of default" or "default" under any such agreement; or
any Indebtedness of the Servicer, any delegate of the Servicer
or any of the Servicer's Subsidiaries greater than $5,000,000
shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to
the scheduled date of maturity thereof; or"
(d) The text of subsection (d) to Section 6.4 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"any Event of Bankruptcy shall occur with respect to the
Servicer, any delegate of the Servicer or any of its Subsid-
iaries; or"
SECTION 12. Amendment to Section 7.1 ("Termination Events")
(a) The text of subsection (h) to Section 7.1 is hereby deleted in its
entirety and replaced with the following text (solely for convenience of
reference, the revised language in this subsection is italicized):
"any of the Receivables Purchase Agreements shall have
terminated, provided, however, that the parties to that
certain Receivables Purchase Agreement, dated as of January
27, 1993, between McRae's, Inc. and McRae's of Alabama, an
Alabama corporation, may agree to terminate such agreement
without causing a Termination Event hereunder;"
(b) The text of subsection (i) to Section 7.1 is hereby
deleted in its entirety and replaced with the following text (solely for
convenience of reference, the revised language in this subsection is
italicized):
"the Transferor, the Servicer or any Designated Seller shall
enter into any transaction or merger whereby it is not the
surviving entity, provided, however, that Parisian Services,
Inc. may merge with and into Parisian, Inc.; or"
(c) The text of subsection (r) to Section 7.1 is hereby delet-
ed in its entirety and replaced with the text below (solely for conve-
nience of reference, the revised language in this subsection is itali-
cized), and immediately after the revised subsection (r), there shall be
added to Section 7.1 a new subsection (s) as indicated below:
"(r) a Guarantor Default shall have occurred and be
continuing; or
(s) the Transferor shall not, on any day after the Effective
Date, be the direct and wholly-owned subsidiary of Proffitt's,
Inc. and Parisian, Inc. as the exclusive owners of 100% of the
Transferor's common stock."
SECTION 13. Amendment to the Account Schedule. Schedule A to
the Agreement is hereby amended by adding thereto those accounts
identified by account number and Parisian Receivable balance included in
the computer tape delivered to the Agent pursuant to Section 19 hereof.
SECTION 14. Amendment to Exhibit A ("Form of Account").
Exhibit A to the Agreement is hereby amended by adding thereto a copy of
the form of Parisian, Inc. and Parisian Services, Inc. revolving charge
card agreement.
SECTION 15. Amendment to Exhibit B ("Form of Credit
Guidelines"). Exhibit B to the Agreement is hereby amended by adding
thereto a copy of the Parisian Credit Guidelines.
SECTION 16. Amendment to Exhibit C ("List of Lock-Box Banks
and Accounts"). Exhibit C to the Agreement is hereby amended by adding
the following text immediately after the words "Account Number: 00-300-276":
"3. For Parisian Receivables:
AmSouth Bank of Alabama
P.O. Box 11007
Birmingham, Alabama 35288
Account Number: 45467803"
SECTION 17. Amendment to Exhibit E ("Form of Investor
Report"). Exhibit E to the Agreement is hereby amended by replacing the
existing Form of Investor Report with the form attached hereto as
Exhibit E.
SECTION 18. Amendment to Exhibit P ("Form of Cycle
Certificate"). Exhibit P to the Agreement is hereby amended by
replacing the existing Form of Cycle Certificate with the form attached
hereto as Exhibit P.
SECTION 19. Conditions Precedent. This Amendment shall not
become effective until the following shall have occurred:
(a) Parisian, Inc. shall have delivered to the Agent evidence
satisfactory to the Agent and its counsel demonstrating that it has
complied, as a Designated Seller, with all of the provisions described
in Section 2.8 of the Agreement. Such evidence shall include, but not
be limited to, (i) certified copies of all necessary search reports,
financing statements, assignments of financing statements and
terminations of financing statements, (ii) evidence or appropriate
certification confirming that it has clearly and unambiguously marked
its master data processing records and any storage containers containing
Records to indicate that the Parisian Receivables and a corresponding
interest in the related Accounts have been conveyed to the Transferor,
and subsequently transferred to the Agent, for the benefit of the
Company and the Bank Investors, and that the legend described in Section
2.8 of the Agreement has been affixed as described and (iii) confirma-
tion that a computer tape containing a true and complete list of all Ac-
counts related to the Parisian Receivables in existence as of the
Parisian Cut-Off Date has been delivered to the Agent and that such list
of Accounts, identifying therein all account numbers and Parisian
Receivable balance, should be added to and become part of Schedule A to
the Agreement.
(b) Parisian, Inc. shall have delivered to the Agent each of
the following, in form and substance satisfactory to the Agent and its
counsel:
(1) A copy of the resolutions of the Board of Directors of
Parisian, Inc. and Parisian Services, Inc., each certified by its
respective Secretary approving the execution, delivery and perfor-
mance by such Person of the Receivables Purchase Agreement and each
other document required to be delivered by such Person hereunder or
thereunder.
(2) The Articles of Incorporation for each of Parisian, Inc.
and Parisian Services, Inc., certified by the Secretary of State or
other similar official of such Person's jurisdiction of incorpora-
tion dated a date reasonably prior to the Effective Date.
(3) Good Standing Certificates for Parisian, Inc. and
Parisian Services, Inc. issued by the Secretary of State or a simi-
lar official of such Persons's jurisdiction of incorporation and
certificates of qualification as a foreign corporation issued by
the Secretaries of State or other similar officials of each juris-
diction when such qualification is material to the transactions
contemplated by the Agreement, the Receivables Purchase Agreement,
this Amendment and each other document executed in connection with
any of the foregoing, in each case, dated a date reasonably prior
to the Effective Date.
(4) Certificates of the respective Secretary of Parisian,
Inc. and of Parisian Services, Inc., substantially in the form of
Exhibit L attached to the Agreement.
(5) Copies of proper financing statements (Form UCC-1), dated
a date reasonably near to the Effective Date naming each of
Parisian Services, Inc. and Parisian, Inc. as debtor in favor of
the Transferor as secured party and the Agent, for the benefit of
the Company and the Bank Investors, as assignee of the secured
party or other similar instruments or documents as may be necessary
or in the reasonable opinion of the Agent desirable under the UCC
of all appropriate jurisdictions or any comparable law to perfect
the Transferor's ownership interest in all Parisian Receivables.
(6) Copies of proper financing statements (Form UCC-3), if
any, necessary to terminate all security interests and other rights
of any person in Parisian Receivables previously granted by any
person, including, without limitation, Sheffield Receivables Corpo-
ration, Parisian of Tennessee, Inc., Hess Specialty Department
Stores, LLC, Parisian Services, Inc. and Parisian, Inc.
(7) Certified copies of request for information or copies
(Form UCC-11) (or a similar search report certified by parties
acceptable to the Agent) dated a date reasonably near the date of
the Effective Date listing all effective financing statements which
name Sheffield Receivables Corporation, Parisian of Tennessee,
Inc., Hess Specialty Department Stores, LLC, Parisian Services,
Inc. and Parisian, Inc. (under their respective present names and
any previous names) as debtor and which are filed in jurisdictions
in which the filings were made pursuant to item 5 above together
with copies of such financing statements (none of which shall cover
any Receivables or Contracts).
(8) Executed copies of the Lock-Box Agreement between AmSouth
Bank of Alabama and Parisian, Inc. relating to the Lock-Box Bank
and the Lock-Box Account for Collections related to the Parisian
Receivables.
(9) Notices of termination of, or other acceptable evidence
of the termination of, any existing lock-box agreements related to
or formerly employed in connection with the Parisian Receivables
and the Sheffield Facility (as defined below).
(10) A Cycle Certificate for the Parisian Cut-Off Date.
(11) An Investor Report dated as of December 31, 1996 and
which includes the Parisian Receivables.
(12) Such other agreements, instruments or documentation as
the Agent and its counsel shall require.
(c) The Agent shall have received an opinion or opinions of
Butler, Snow, O'Mara, Stevens & Cannada, PLLC, special counsel to
Parisian, Inc. and Parisian, Services, Inc., covering certain corporate
and bankruptcy matters in form and substance satisfactory to the Agent
and its counsel.
(d) The Agent shall have received an opinion of Schreck Mor-
ris, special Nevada counsel to the Transferor, covering certain corpo-
rate matters related to this Amendment in form and substance satisfac-
tory to the Agent and the Agent's counsel.
(e) A computer tape setting forth as of the Parisian Cut-Off
Date all Parisian Receivables and the Outstanding Principal Balances
thereon and such other information as the Agent may reasonably request.
(f) The Agent shall have received in connection with the
termination of that certain Receivables Purchase Agreement, dated as of
March 31, 1993 between Parisian Services, Inc., as seller, Sheffield
Receivables Corporation, as purchaser, The Bank of Nova Scotia, as the
agent and Barclays Bank PLC, New York Branch, as the administrative
agent and managing agent thereunder, as such agreement has been amended,
supplemented and modified to the Effective Date (together with all
related documents and agreements, the "Sheffield Facility") such
agreements, documents and instruments as are necessary and appropriate
to reflect the termination of the Sheffield Facility, including without
limitation, the termination of the Second Amended and Restated Financing
and Collection Agency Agreement, and the release of all liens and secu-
rity interests of all secured parties holding an interest in the Pari-
sian Receivables arising under or related thereto. The foregoing agree-
ments, documents, and instruments shall include, but not be limited to,
a payoff letter setting forth the pay-off amount, a release agreement
and UCC-3 termination statements, each in form and substance reasonably
satisfactory to the Agent.
(g) [Reserved].
(h) The Administrative Agent shall have received payment in
immediately available funds of an amendment fee in the amount of
$25,000.
(i) The Agent shall have received evidence satisfactory to
the Agent and its counsel that (i) no further action is required or
shall be necessary to satisfy any conditions precedent to the
Receivables Purchase Agreement dated as of the date hereof between the
Transferor, as purchaser, Parisian Services, Inc. and Parisian, Inc., as
sellers thereunder, and McRae's, Inc., as servicer; and (ii) but for the
filing with the Secretary of State of Alabama of the Articles of Merger
and the Plan of Merger of Parisian Services, Inc. with and into Pari-
sian, Inc., whereby Parisian, Inc. will succeed to all of the rights and
obligations of Parisian Services, Inc., no further action is required or
shall be necessary in order for the merger of Parisian Services, Inc.
with and into Parisian, Inc. to be effective and (iii) no further
action is required or shall be necessary to the execution and delivery
of that certain Amended and Restated Management Agreement between
McRae's of Alabama, Inc. and McRae's, Inc. dated as of the date hereof
and effective as of January 15, 1997.
SECTION 20. Separate Agreement. The parties hereto agree
that it shall be a Termination Event under the Agreement if Proffitt's,
Inc. fails to provide satisfactory evidence to the Agent on or before
February 14, 1997 that (i) the definition of "Recoveries" as defined and
used in that certain Pooling and Servicing Agreement dated as of June
13, 1995, among Younkers Credit Corporation, as seller, Younkers, Inc.,
as servicer and Chemical Bank, as trustee and in that certain Receiv-
ables Purchase Agreement, dated as of June 13, 1995, between Younkers,
Inc., as seller thereunder and Younkers Credit Corporation as purchaser
thereunder, has been satisfactorily revised and the foregoing agreements
amended to mean only those recoveries of amounts due and owing under
charge card accounts originated by Younkers, Inc. pursuant to charge
card account agreements between Younkers, Inc. and the obligors on such
charge card accounts and (ii) all appropriate UCC financing statements
filed in connection with such Pooling and Servicing Agreement and such
Receivables Purchase Agreement have been satisfactorily amended as
described in clause (i). In addition, Proffitt's, Inc. agrees to use
its good faith efforts to cause Younkers Credit Corporation, a Delaware
Corporation, a special purpose subsidiary of Younkers, Inc., to enter
into an intercreditor agreement between the Transferor and Younkers
Credit Corporation in form and substance satisfactory to the Agent and
its counsel, on or before February 14, 1997.
SECTION 21. Limited Scope. This amendment is specific to the
circumstances described above and does not imply any future amendment or
waiver of rights allocated to the Company, the Transferor, Proffitt's,
the Servicer Guarantor, the Servicer and NationsBank under the Transfer
and Administration Agreement.
SECTION 22. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 23. Severability; 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 shall be deemed
to be an original and all of which when taken together shall constitute
one and the same instrument. 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.
SECTION 24. Ratification; Agreement to Remain in Full Force
and Effect. Except as expressly affected by the provisions hereof, the
Transfer and Administration Agreement as amended shall remain in full
force and effect in accordance with its terms and ratified and confirmed
by the parties hereto. On and after the date hereof, each reference in
the Transfer and Administration Agreement to "this Agreement", "hereun-
der", "herein" or words of like import shall mean and be a reference to
the Transfer and Administration Agreement as amended by this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date and year first above written.
ENTERPRISE FUNDING CORPORATION,
as Company
By:
Name:
Title:
PROFFITT'S CREDIT CORPORATION,
as Transferor
By:
Name: Douglas E. Coltharp
Title: President
McRAE'S, INC.,
as Servicer
By:
Name: Douglas E. Coltharp
Title: Chief Financial Officer
PROFFITT'S, INC.
as Servicer Guarantor
By:
Name: Douglas E. Coltharp
Title: Chief Financial Officer
NATIONSBANK, N.A., as Agent
and a Bank Investor
By:
Name:
Title:
Exhibit E
Form of Investor Report
Exhibit P
Form of Cycle Certificate
X:\WPDATA\JAS\PROFFITT\SECURITI\10-K.497\EX-10-9.ASC