EXHIBIT 10.8
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
15th day of November, 1994 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 (the "Credit Agreement"), pursuant to
which the Lenders agree to make certain Advances to the Borrower;
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 "Consolidated Tangible Net
Worth" in Section 1.01 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Consolidated Tangible Net Worth means at any time as of
which the amount thereof is to be determined,
Consolidated Shareholders' Equity minus the sum of the
following (without duplication of deductions in respect
of items already deducted in arriving at surplus and
retained earnings): the net book value of all assets
which would be treated as intangible assets under
Generally Accepted Accounting Principles, such as
(without limitation) goodwill (whether representing the
excess of cost over book value of assets acquired or
otherwise), capitalized expenses, unamortized debt
discount and expense, consignment inventory rights,
patents, trademarks, trade names, copyrights,
franchises and licenses and all reserves, including
without limitation reserves for depreciation,
depletion, amortization, obsolescence, deferred income
taxes, insurance and inventory valuation; all as
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis; provided, however, there shall be
included in the determination of Consolidated Tangible
Net Worth, notwithstanding the foregoing, all
adjustments (both increases and decreases) to assets
and liabilities of the Borrower and its Subsidiaries on
a consolidated basis made in connection with and as a
result of the Macco Acquisition and in accordance with
Generally Accepted Accounting Principles;
(b) Section 8.03 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
8.03 CONSOLIDATED SENIOR INDEBTEDNESS TO
CONSOLIDATED CAPITALIZATION. Permit at any time during
the periods set forth below the ratio of Consolidated
Senior Indebtedness to Consolidated Capitalization to
be greater than the ratios set forth opposite the
following respective periods:
PERIOD RATIO
Closing Date through April 28, 1995 .45 to 1.00
April 29, 1995 through July 31, 1995 .43 to 1.00
August 1, 1995 through February 2, 1996 .46 to 1.00
February 3, 1996 through May 3, 1996 .40 to 1.00
May 4, 1996 through January 31, 1997 .35 to 1.00
February 1, 1997 and thereafter .30 to 1.00
provided, however, that during each of the third
quarters of Borrower's Fiscal Years ending January 31,
1995 and February 1, 1997 and each Fiscal Year
thereafter, the ratios set forth above shall be
increased by an additional .03 to 1.00 for such third
quarter periods.
(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 April 28, 1995 1.50 to 1.00
April 29, 1995 through May 3, 1996 1.60 to 1.00
May 4, 1996, 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 February 2, 1995 4.50 to 1.00
February 3, 1995 through May 3, 1996 3.50 to 1.00
May 4, 1996 and thereafter 3.00 to 1.00
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 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 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 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 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, 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.
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'S, INC.
By: /s/ Brian J. Martin By: /s/ James E. Glasscock
Name: Brian J. Martin Name: James E. Glasscock
Title:Assistant Secretary Title:Senior Vice President and
Chief Financial Officer
(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:
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: